BEN20 v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BEN20 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3418
Catchwords:
MIGRATION – Application for Safe Haven Enterprise Visa (SHEV) – adverse credibility findings against applicant – no merit to claims that Authority acted unreasonably in the exercise of its discretion not to seek new information from the applicant – no merit to claims that the Authority failed to give appropriate attention to evidence before it – no merit to claims that the Authority failed to intellectually engage with the applicant’s clearly articulated claims – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DC, 473DD.

Cases cited:

DKF17 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2019] FCA 1963.

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair

v BTW17 [2020] FCAFC 159.

DPI17 v Minister for Home Affairs & Anor (2019) 269 FCR 134.

BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079.

DGZ16 v Minister for Immigration and Border Protection & Anor (2018) 258

FCR 551.

DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175.

AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83.

AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261

FCR 503.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Applicant: BEN20
First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY
File Number: BRG 159 of 2020
Judgment of: Judge Egan
Hearing date: 1 December 2020
Date of Last Submission: 1 December 2020
Delivered at: Brisbane
Delivered on: 16 December 2020

REPRESENTATION

Counsel for the Applicant: Mr Brady QC with Ms Bratti
Solicitors for the Applicant: Holding Redlich
Counsel for the First Respondent: Mr Byrnes
Solicitors for the First Respondent: Sparke Helmore
Second Respondent: Submitting appearance save as to costs

ORDERS

  1. The Amended Application for Review filed on 18 June 2020 be dismissed.

  2. 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 BRISBANE

BRG159 of 2020

BEN20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. The applicant is a citizen of Iran of Kurdish ethnicity who departed Iran on or about 15 May 2013 by using his own valid Iranian passport.

  2. The applicant arrived in Australia as an unauthorised maritime arrival on or about 4 June 2013. On 29 June 2013, an arrival interview was conducted with the applicant, at which time relevant answers in response to questions asked of the applicant were recorded. Some of those questions and answers were as follows: [1]

    [1]        Court Book (CB) pp. 9 – 10 inclusive.

    “Reason to Leave

    32. Why did you leave your country of nationality (country of residence)?

    Q. Why did…

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Details
Case
[2020] FCCA 3418
Decision Date

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by BEN20 against the Minister for Immigration. The applicant sought to challenge adverse credibility findings made by the Authority in relation to their application for a Safe Haven Enterprise Visa (SHEV). The application was heard by Judge Egan.

The legal issues before the court were whether the Authority acted unreasonably in the exercise of its discretion not to seek new information from the applicant, whether the Authority failed to give appropriate attention to the evidence before it, and whether the Authority failed to intellectually engage with the applicant’s clearly articulated claims. The central question was whether any of these alleged failures constituted jurisdictional error.

Judge Egan found no merit in the applicant's claims. The court applied the principles relating to legal unreasonableness and jurisdictional error as summarised in *DAO16 v Minister for Immigration and Border Protection* (2018) 258 FCR 175. The Authority's findings were based on a considered assessment and weighing of the facts before it, and were not found to be arbitrary, capricious, without common sense, plainly unjust, or extremely illogical. The court noted that while adverse credibility findings are subject to scrutiny, they do not automatically constitute jurisdictional error. A high degree of caution is required to avoid impermissibly embarking on merits review, and extreme illogicality must be demonstrated. The court concluded that the applicant had not established jurisdictional error.

The application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Authority made a finding based upon its considered assessment of, and a weighing up of, the facts before it. Its findings were not arbitrary, capricious, without common sense, plainly unjust or extremely illogical. In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30], Kenny, Kerr and Perry JJ summarised the principles relating to legal unreasonableness as follows:“[30] The relevant principles can be summarised as follows.(1) While findings as to credit are generally matters for the administrative decision-maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) that:135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.(Emphasis added)(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37].(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (in a passage approved in CQG15 at [60]) that:56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny …(Citations omitted)(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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