BFH16 v Minister for Home Affairs
[2019] FCCA 730
•29 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BFH16 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 730 |
| Catchwords: MIGRATION – Protection visa – students apply for Protection visas following expiry of Student visas and rejection of applications for Graduate visas – applicants’ claim for protection grounded on claim to be member of particular social group, being homosexuals in Pakistan – applicants found not to be credible witnesses and claims found to be implausible – delay in applying for visas – applicable principles – whether Tribunal’s manner of consideration of claims entailed jurisdictional error – whether affected by unreasonableness – judicial review of application grounded upon challenge to fact finding by Tribunal – distinguished from application grounded upon challenge to exercise of statutory discretionary power – judicial review by evaluation of quality of Tribunal’s decision based upon evidence and submissions made to it – whether Tribunal failed to consider claims or evidence – whether finding of legal unreasonableness could properly be reached by a process of aggregation of impugned facts, none of which had been individually found to be unreasonable, irrational nor illogical – whether claim considered – whether no evidence for finding of fact – whether impugned finding a precondition to the exercise of jurisdiction or a critical step in ultimate decision – applications dismissed. |
| Legislation: Evidence Act 1995 (Cth), ss.3, 4, 144 Migration Act 1958 (Cth), ss.4, 5, 5H, 5J, 13, 14, 29, 30, 31, 36, 65, 414, 420, 474, 476 |
| Cases cited: ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 Bellhave and Stenton Peerage (1875) 1 App Cas 278 Bushell v Repatriation Commission (1992) 175 CLR 408 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227 Sullivan v Moody (2001) 207 CLR 562 SZSSG v Minister for Immigration and Border Protection [2018] FCA 670 SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 |
| Other materials cited: Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 4th Ed (2009), 6th Ed (2017) |
| Applicant: | BFH16 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1077 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 2 February 2018 |
| Date of Last Submission: | 2 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 29 March 2019 |
REPRESENTATION
| Counsel for the Applicant in proceedings MLG 1073/2016 and proceedings MLG 1077/2016: | Mr Moore |
| Solicitors for the Applicant in proceedings MLG 1073/2016 and proceedings MLG 1077/2016: | Asylum Seeker Resource Centre |
| Counsel for the Respondent in proceedings MLG 1073/2016 and proceedings MLG 1077/2016: | Mr Hosking |
| Solicitors for the Respondent in proceedings MLG 1073/2016 and proceedings MLG 1077/2016: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The amended application filed on 5 January 2018 be dismissed.
The first respondent file and serve any submissions on costs within 7 days.
The applicant file and serve any submissions on costs within 14 days.
The question of costs be decided on the papers.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1077 of 2016
| BFH16 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended applications each filed on 5 January 2018, the applicants[1] seek judicial review of decisions made by the Administrative Appeals Tribunal (Tribunal) on 29 April 2016 affirming decisions of a delegate of the first respondent (Minister) to refuse to grant them Protection (Class XA) visas pursuant to par 65(1)(a) of the Migration Act 1958 (Cth) (Act). By consent those applications were heard together.
[1] In proceedings MLG 1073 and MLG 1077 of 2016.
The applicants, who are Pakistani citizens, were born in Sahiwal and Lahore, Punjab Province, and are aged 28 and 32 years respectively. Each of the applicants speaks English and Urdu. Each had departed Pakistan legally; arriving in Australia in December 2009 and July 2009 upon Subclass 572 Student visas so as to study engineering and accounting respectively.
In summary, I do not accept that the Tribunal’s decisions were affected by legal unreasonableness or that the facts as found were irrational or illogical in the requisite sense. The Tribunal considered the applicants claims that they were entitled to Protection visas on the ground that they were entitled to protection as members of a social group which they had defined as being homosexuals living in Pakistan.
Background
In August and December 2011 respectively, the applicants lodged applications for the grant of Subclass 485 Graduate visas, which applications were refused in August and November 2012. The applicants sought merits reviews of the decisions to refuse those applications. In April and June 2013 respectively, the then Migration Review Tribunal affirmed the decisions to refuse those applications.
On 15 May 2013, the applicants applied for Protection visas. In their applications, each stated that they had left Pakistan for the purposes of study and for a better future. Each claimed an Islamic faith. BFH16 (BFH) stated that he had not experienced any harm in Pakistan but that he knew he would never be allowed to be happy and saw a big danger in returning there. BFI16 (BFI) stated that he was homosexual, had a boyfriend from Pakistan which, unlike Australia, was not liberal or peaceful and that after his last trip to Pakistan he had been motivated to apply for a Protection visa as his family (who did not know of his homosexuality), had pressured him to marry. Each stated that if they returned to Pakistan they would not be accepted by their parents, would not be able to live in Pakistani society and would be punished for their homosexuality. Identical answers were given when addressing the questions as to who might cause them harm, why they thought they would suffer harm and why they would not be protected by the Authorities.
Each applicant also furnished a statement of claim:
a)BFH stated ‘loudly and clearly’ that he was homosexual having become aware of his sexuality since year 9 at school. He stated that he had admired a classmate but concealed his sexuality and would release his frustrations watching pornographic gay movies. In Australia, BFH became attracted to another Pakistani, BFI, with whom he shared a room in a two bedroom apartment (BFH’s younger brother occupying the other bedroom). He claimed that on the night of his birthday, following a drunken party, he had declared his affection to BFI and they had then become intimate. BFH stated that he was from a conservative family and that homosexuality was not accepted socially, legally or religiously; and
b)BFI stated that his claim for a protection visa was made on the basis of his sexual orientation, which he had become aware of late in his term as a cadet, including by reason of a brief period of affection for a junior cadet. He stated that he was from a very religious family. BFI stated that at the end of year 12, he had secured his father’s agreement to allow him to study in Australia and that his father had arranged for him to meet BFH, another Pakistani who would also be studying overseas. He stated that he had met BFH in Pakistan on a couple of occasions and that they had shared accommodation in Australia. BFI also recounted the same incident in which they had become drunk on the occasion of BFH’s birthday and then became intimate. BFI described that on his last visit to Pakistan his father had pressured him to marry and that this had become the catalyst for his decision to seek protection upon his return to Australia.
The applicants furnished many photographs of their socialising.
The applicants presented a joint report dated 16 September 2013 from Mr Barry Strmelj, psychologist, who furnished an opinion that each applicant sincerely believed that returning to Pakistan would result in their death.
On 17 February 2014, each of the applicants attended interviews with a delegate of the first respondent. On 1 October 2014, the delegate refused the Protection visa applications and provided decisional records in relation to each of those decisions. The delegate found the applicants not to be credible and considered that their claims lacked plausibility:
a)the delegate doubted the plausibility of the claims that, despite having lived in the same room since 2009, BFH’s younger brother had remained unaware of their relationship for four years;
b)the delegate questioned the veracity of the claim that they did not socialise with other homosexuals and noted the contrasting evidence that the applicants went to a lot of gay events and to photographs of the applicants in the company of a person described as a drag queen;
c)the delegate was struck by the absence of documentary evidence supporting their claims to be homosexual. In particular, the delegate considered that the applicants’ text messages to one another undermined such a claim as did the absence of any emails between them;
d)the delegate noted that the applicants had spent a lot of time apart and examined their answers as to their patterns of communication whilst they were apart. In particular, the delegate noted:
i)BFH’s evidence that the applicants always spoke by telephone but said that the contact was “not a lot”. He found that BFH appeared to make frequent attempts to avoid providing any level of detail and then stated that the contact was once weekly or fortnightly and ascribed the lack of communication to the busy nature of their lives. BFH then stated that the applicants did not talk a lot and that it could not be said they had spoken every day or every other day;
ii)BFI’s evidence that the applicants avoided travelling together in Pakistan so as to avoid suspicion. He stated that the applicants spoke every other day. He stated that they mostly exchanged text messages, adding that they did so occasionally. He also stated that they never communicated by email.
e)In addressing the psychological dependency of the relationship, the delegate noted that in completing their incoming passenger cards, each applicant had variously nominated BFH’s younger brother or another person as their emergency point of contact. Asked to explain why they had not nominated each other as that contact:
i)BFH stated that he did not want to indicate to anyone that he and BFI were more than friends and that the only time he had used BFI as a point of contact was in relation to their work as security guards at bars and clubs;
ii)BFI said that on one occasion he had nominated BFH’s younger brother because their house and bills were in his name and because the brother had been generous to him. He stated that on another occasion he had not nominated BFH as his emergency contact because he did not want anyone to know of their relationship and that he was afraid. When a third incoming passenger card was put to him in which he had nominated BFH as his emergency contact, he responded that BFH was his life saviour and was the only person he had.
f)the delegate concluded that there was a striking lack of documentary evidence that the claimed relationship existed and considered their testimony to be confused, contradictory and implausible. He found the lack of email communication between them inconsistent with their claim to be in a genuine discrete relationship. The delegate considered the photographic evidence stored on their mobile phones to be inconsistent with their stated objective of going to remarkable lengths to conceal their relationship and as being explicable on the basis that both applicants had been employed for a significant period as security guards at various bars. The delegate postulated that the photographs could have been produced for the purposes of advancing their protection claims;
g)the delegate considered the psychologist’s report to be little more than a summary of the history provided by the applicants and largely based on self-reported and arguably self-serving information;
h)the delegate contrasted the psychologist’s report as to the expressed effect of the migration applications upon the applicants’ mental health with their arrival in Australia in 2009, the commencement of their relationship in March 2010 and the lodgement of their applications for Protection visas in 2013;
i)the delegate considered that had the applicants held a genuine fear of being seriously harmed in Pakistan, they would have made their Protection visa applications earlier and not have returned to Pakistan as frequently as they had done; and
j)the delegate was not satisfied that the applicants were in a genuine homosexual relationship or that they held a genuine fear of harm in Pakistan for that reason.
On 17 October 2014, the applicants lodged applications with the Tribunal for review of the delegate’s decisions.
On 7 April 2016, the applicants’ migration lawyer lodged a joint submission to the Tribunal in support of their respective applications. Structurally, the joint submission was arranged so as to provide: (1) a background; (2) a statement of relevant law; (3) a review of country information; and (4) submissions addressing each aspect of the delegate’s decision, together with a rebuttal as to the following matters:
a)social aspects of the relationship;
b)the applicants’ communications;
c)psychological dependency of the parties’ relationship;
d)the delay in applying for a Protection visa; and
e)a conclusion on the delegate’s reasons.
The joint submission advanced a contention that the core issues in the applications was whether the applicants had provided adequate proof that they were in a homosexual relationship and whether their testimony on that subject was credible. The joint submission advanced the contention that if their testimony was accepted as credible, they feared harm on the basis of their being in a particular social group; namely, homosexuals in Pakistan. Against that background, the joint submission proceeded to address whether the applicants held a well-founded fear of persecution, whether they were members of their claimed particular social group and addressed issues of prosecution, persecution, protection and relocation.
The applicants also lodged a statutory declaration by one Daut Kryezi who stated in very brief terms that he had known the applicants for five and three and a half years respectively, and that he had been shocked to see them as a couple when meeting them at a Collingwood club four years earlier. He also declared that on most of the occasions that he had seen or met with them, they had always seemed to be together, adding that he had seen them at the ‘Sauna’ in Flinders St, concluding that “I know that they are living together as a couple.” The applicants also lodged other documents including gas and electricity accounts and a residential tenancy agreement naming each of them as tenants in the year 2014 – 2015.
On 14 April 2016, the applicants appeared before the Tribunal with the assistance of their migration lawyer to give evidence and present arguments on their applications for review. They agreed to a joint hearing of their applications for a merits review. The hearing was of about 2 ½ hours duration. Following that hearing, the applicants’ migration lawyer supplied the Tribunal with a number of photographs of the applicants.
On 29 April 2016, the Tribunal affirmed the delegate’s decisions and provided separate statements of its reasons for the decisions (Reasons). For ease of reference, those Reasons will be referred to by the applicants’ respective pseudonyms (eg, BFH, [par]).
Tribunal’s findings and reasons
No issue was taken as to the Tribunal’s summary of the applications for review or its statement of the criteria to be applied for protection.
In its consideration of the claims and evidence, the Tribunal summarised the applicants’ respective claims and identified the materials which had been submitted by them in support of their applications for review. The Tribunal reproduced the content of the applicants’ statements of claim: BFH, [12]-[13]; BFI, [12]-[13].
The Tribunal recorded that it had received the psychologist’s report, the delegate’s decisional record, the further statutory declaration made by BFI, the photographs, -various documents and joint submissions, recognising that the applicants had given evidence and supplied documents after the Tribunal hearing: BFH, [14]-[18]; BFI, [14]-[18].
In each case the Tribunal considered that the issue arising on the decision under review was whether they would be persecuted, or whether they were entitled to complementary protection, by reason of their claims to be homosexuals in Pakistan. The Tribunal recorded that in the decision under review, the delegate had found each applicant not to have been a truthful witness and concluded that their claims lacked plausibility. It accepted that the applicants were Pakistani nationals and identified credibility as a central issue in each case. The Tribunal identified the legal principles upon which an administrative decision maker was obliged to address questions of credibility, including that care was to be taken to not adopt an overly stringent approach and that an applicant was to be given the benefit of the doubt in cases where the decision-maker was satisfied of an applicant’s credibility. It also recognised that an overly nice approach to the standard of proof was not required; where an adverse finding was made, the Tribunal should proceed on the basis that it might possibly be true, and that it was not required to accept uncritically everything which was said by an applicant: BFH, [19]-[29]; BFI, [19]-[29].
The Tribunal stated that, like the delegate, it had not found the applicants to be credible witnesses and did not accept that they were in a homosexual relationship with one another.
As concerned its consideration of the credibility of the evidence given by BFH and BFI, the Tribunal reasoned as follows:
a)BFH had recounted the matters set out in his statement of claim including the concealment of his sexuality in Pakistan, his practice watching gay porn, his move to Australia and the circumstances in which he and BFI had formed their relationship. The Tribunal found that BFI had given accounts of his claimed sexual encounter at Cadet College which contained significant inconsistencies and did not accept that that incident had occurred: BFI, [31];
b)the Tribunal pressed BFH for details as to his discussions with BFI following their first homosexual liaison and when it was that they subsequently had sex. The Tribunal found BFH to be vague and evasive and that his evidence had been inconsistent with the account which BFI had given the Tribunal: BFH, [31]-[36]. The Tribunal afforded BFH an opportunity to respond and did not accept BFH’s explanation for the significant differences in the applicants’ evidence: BFH, [37]. The Tribunal adopted a similar course and made similar findings respecting BFI: [37]-[39];
c)as to the vagueness of the evidence, the Tribunal reasoned that:
. . . , the Tribunal, as discussed with [each applicant], finds it relevant that both claim they had gay feelings since they had been in high school, both claim that they had not had sexual intercourse before, both claim they did not know the other was gay before that night, and both claim they are from conservative families and a conservative social milieu which would strongly disapprove of their actions. BFH, [37]; BFI, [39];
d)the Tribunal found to be totally implausible that the evidence that BFH’s brother, who lived in the same two bedroom apartment, was unaware of the nature of the parties’ relationship over the four year period that they had lived with him: BFH, [37], [41]; BFI, [39], [43];
e)the Tribunal discussed the overseas travel patterns of BFH and BFI which included that they had spent, in aggregate, some 38 weeks apart in the period 2011 – 2013. It noted that BFH and BFI had provided inconsistent evidence to the Tribunal about how often they had contacted one another whilst apart or travelling overseas: BFH, [38]; BFI, [40];
f)the Tribunal found the evidence given by BFH and BFI about wanting to keep their relationship a secret to be inconsistent with their evidence that they openly frequented gay venues. In this context, it may be noted that a difference in the Reasons was that the underlined portion below appeared only in the Reasons relating to BFH:
Noting that the applicant and Mr Mehboob[2] lived in a two bedroom apartment with the applicant’s brother for over four years while they claim to have been in a gay relationship, and, as discussed with the applicant, noting from the Tribunal’s personal experience that Pakistan is a highly sex segregated and patriarchal society where it is common for men to be in each other’s close company, without that raising any queries about their sexuality, the Tribunal does not accept as valid the applicant and Mr Mehboob’s assertions that they did not wish to travel at the same time as it might raise the suspicion that they were in a relationship, or that they might have the urge to meet each other and this might arouse (sic) suspicions about the nature of their relationship: cf BFH, [40]; BFI, [41].
g)concerning the claim that the applicants wished to keep their relationship secret, the Tribunal enquired as to their attending an openly gay sauna and club in Melbourne. The Tribunal put to the applicants that the sauna website made explicit that attendees may be propositioned for casual gay sex and contrasted that to their claim that the relationship was monogamous. The Tribunal considered the decision to attend such venues to be at odds with their desire for secrecy and the monogamous nature of their relationship. The applicants replied that the sauna also provided massage services, and that they did not go there for casual sex. The Tribunal considered that their attendance at such venues had been for the purposes of building a gay profile for the purposes of their visa application. It was also considered to be contradictory that photos of the applicants were kept on their mobile phones in circumstances where they did not want to be exposed as being in a gay relationship. Likewise the Tribunal regarded as incongruous that although the applicants had attended an openly gay club, they had made only one friend who knew of their homosexuality: BFH, [40]-[41], [45]; BFI, [42]-[43], [48].
[2]In BFI’s Reasons, in two places the reference to Mr Mehboob or the applicant was replaced with a reference to Mr Fayyaz.
The Tribunal also had regard to the delay between the date on which the applicants had arrived in Australia (2009) and the lodging of their applications for Protection visas (2013). It noted that BFH had attempted to secure residence in Australia via a Graduate visa which application had been refused on 11 April 2013, shortly before his Protection visa application had been lodged in May 2013: BFH, [42]. In the case of BFI, the Tribunal noted that his application for a Graduate Subclass 485 visa had been refused in November 2012, yet no Protection visa had been sought for a further 12 months: BFI, [44].
The Tribunal had regard to other documents which had been submitted by the applicants including the psychologist’s report. The Tribunal attached little weight to the contents of those documents because:
a)it did not consider it to be the role of a psychologist to proffer an opinion on the applicants’ credibility: BFH, [44]; BFI, [47];
b)it did not consider the parties’ tenancy agreement as proof of their being in a homosexual relationship: BFH, [45]; and
c)it gave no weight to Mr Kryezi’s statutory declaration or the text messages said to be with him. The applicants claimed that Mr Kyrezi was gay and the only person who knew of their relationship. In conducting a merits review it considered it to be preferable to undertake its own analysis of the claim than to act on the statement of Mr Kyrezi that he knew the applicants to be a couple: BFH, [45].
By reason that the Tribunal did not accept that the applicants were homosexual or that they were in a same-sex relationship with one another, the Tribunal found that the applicants did not have a well-founded fear of persecution in Pakistan and would not face a real risk of significant harm if returned to Pakistan: BFH, [43], [46]; BFI, [46], [49].
The Tribunal found that the applicants did not satisfy the criteria to establish that they were refugees or that they were entitled to complementary protection: BFH, [47]-[52]; BFI at [51]-[55].
Procedural history
On 23 May 2016, applications were filed in this court seeking judicial review of each of the Tribunal’s respective decisions. The original grounds of application were in substantially identical form.
On the same date, the applicants’ solicitor affirmed an affidavit to which she exhibited a copy of the Tribunal’s Reasons.
On 3 June 2016, the Minister filed a Response seeking dismissal of the respective applications with costs on the ground that neither decision was affected by jurisdictional error.
On 25 October 2016, orders were made by consent in each proceeding that the applications for judicial review be set down for hearing. Pursuant to those orders, the applicants were granted leave to file any amended application with proper particulars, a supplementary court book (if any) and submissions. On 5 January 2018, each applicant filed an amended application together with a joint written submission.
Judicial Review
Being a privative clause decision,[3] the Tribunal’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[4] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[5]
[3] Act, s 474(2).
[4]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[5] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[6] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[6]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Certain criteria for Protection visas are those set out in s 36 of the Act.
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65.[7]
[7]Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].
By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[8] Conversely, if satisfied that the criteria for a visa are satisfied, the application must be granted.[9] Thus, the latitude granted to an administrative decision maker requires that if the criteria for the grant of a Protection visa are satisfied, the application must be granted and if not so satisfied, the visa application must be refused. In each case, a unique decision is required which turns upon the decision-maker being satisfied that the criteria are met.
[8]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[9] Act, s 65(1)(a).
Consideration.
As had occurred before the Tribunal, in this court the applicants agreed on a joint hearing of their applications.
The applicants did not press the applications for relief contained in the amended applications insofar as they replicated the claims made in the original applications for either declaratory or injunctive relief. The only relief sought was for orders quashing the Tribunal’s decisions and remitting their applications for merits review to be re-determined according to law.
By their respective amended applications, and in place of the original grounds 1-6, new amended grounds 1-3 were pressed. The original seventh ground of review was abandoned.
In contrast with the original grounds of review, none of the new grounds were refined or given content by any particulars. A generalised ground of judicial review which is not refined by particulars so as to inform the basis on which it is said that the decision is affected by jurisdictional error, affords a sufficient basis for the rejection of that ground of review. In WZAVW v Minister for Immigration and Border Protection,[10] Gilmour J said:
. . . an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed
See also MZARG v Minister for Immigration and Border Protection.[11]
[10] [2016] FCA 760, [35] (citations omitted).
[11] [2018] FCA 624 at [25], (McKerracher J).
In the circumstances of this case, the want of particulars was redressed by the careful written and oral submissions of the applicants’ counsel.
Ground 1 – Unreasonableness
Amended Ground 1 reads:
The decision of the Tribunal was unreasonable.
The applicants contended the Tribunal’s decisions were unreasonable because they lacked an evident or intelligible justification. To that end, reliance was placed upon what had been said in Minister for Immigration and Citizenship v Li,[12] that the concept of Wednesbury[13] unreasonableness should neither be understood as the starting point nor end point of legal unreasonableness and were not limited to decisions which were irrational or bizarre – that is, a decision that was so unreasonable that no reasonable person could have arrived at it. The applicants noted that in Li, Hayne, Kiefel and Bell JJ had reasoned[14] that a court was authorised in the review of an administrative decision which turned upon the exercise of a statutory discretion, to infer that there had been a failure in some way, to properly exercise the discretion if upon the facts the result was unreasonable or plainly unjust. Their Honours held[15] that such an approach was available “where unreasonableness was an inference drawn from the facts and from the matters falling for consideration in the exercise of statutory power” including in cases where it was not possible to comprehend precisely how the decision had been arrived at:
Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
Counsel for the applicants pressed Ground 1 on the basis of those statements of principle (which was described as legal unreasonableness in an ‘expanded’ sense).
[12] (2013) 249 CLR 332, 367, [68] (Hayne, Kiefel and Bell JJ).
[13] Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223, 230.
[14] (2013) 249 CLR 332, 367, [72].
[15] (2013) 249 CLR 332, 367, [68], [76]; cf [27] (French CJ).
The applicants advanced Ground 1 by reference to the manner in which the Tribunal had approached its task of determining the credibility of the applicants’ claims to be in a homosexual relationship. Counsel made that submission so as to meet the Minister’s submission that Ground 1 amounted to an impermissible attempt to have the court conduct a merits review of the Tribunal decision.[16]
[16] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
The applicants identified six topics in respect of which it was said that the Tribunal’s finding had been unreasonable. With one exception, it was accepted that none of the findings on those topics had been unreasonable in or of itself. Rather, it was submitted that when all of those findings had been taken in the aggregate, it was apparent that the Tribunal’s decision was unreasonable in the requisite sense. The challenges to the manner in which the Tribunal had assessed those issues of fact and the findings which were made are addressed below.
Counsel for the Minister observed that Ground 1 was not particularised and that when regard was had to the matters relied upon by the applicants it was apparent that their challenge entailed an impermissible merits review by this court.[17] Counsel for the Minister emphasised that it was a matter for the Tribunal to determine what weight was given to particular evidence and that its findings were open on the material before it.[18] It was further submitted that the Tribunal’s decision did not fall within the ambit or character of a decision which was so unreasonable that no decision-maker would have made it; nor was it so seriously illogical or irrational as to be affected by jurisdictional error.
[17]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[18]Ibid; see also NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167, [9] (Heerey, RD Nicholson and Selway JJ).
The Minister identified that in Li, the High Court had been concerned to examine the concept of legal unreasonableness in the context of a decision made in the exercise of a statutory discretion. It was submitted, nothing in Li indicated that it was open to a court to review a Tribunal’s factual findings to determine whether or not they had an adequate justification and that the principles to be applied in relation to the review of an administrative decision on questions of fact were those stated in Minister for Immigration and Citizenship v SZMDS.[19]
[19] (2010) 240 CLR 611, [130].
The Minister submitted that the applicants sought to transpose the principles of legal unreasonableness as stated Li with respect to a challenge to the exercise of a statutory discretion and to apply them to the judicial review of factual findings made by the Tribunal. It was submitted that to do so would be to disregard of the principles which confined the court’s supervisory role to the identification of jurisdictional error.
Legal unreasonableness
It is not open for this court to conduct a merits review of an application. However, the generality of that proposition conceals the nature of the process of judicial review. Consideration of whether there is substantive merit in an application for judicial review requires that the Tribunal’s Reasons be examined. As Allsop CJ has stated, the close analysis of the factual evaluation and approach taken by the Tribunal is not merits review; it is part of the process of assessing whether serious findings made about an applicant have been made lawfully: SZSSG v Minister for Immigration and Border Protection.[20]
[20] [2018] FCA 670, [6].
As counsel for the applicants submitted, it is inherent in an examination of the manner in which the Tribunal undertook its decision-making process that the court examine the facts which were considered by the Tribunal. Likewise, it was correctly submitted that an examination of issues of credit was not beyond scrutiny in judicial review.
The supervisory role undertaken in judicial review cannot be permitted to evolve into a merits review of the application. The court has no jurisdiction to undertake merits review. By contrast, where the result of an administrative decision is judged to be legally unreasonable, the court is not involved in the conduct of merits review. To the contrary, “the court is asking whether the decision-maker's purported exercise of power was beyond power because it was legally unreasonable.”[21]
[21]Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, [83] (Nettle and Gordon JJ), citing Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36.
An administrative decision-maker is to be allowed an area of genuine decisional freedom within which reasonable minds might properly differ upon what constitutes the correct or preferable decision.[22] Expressed another way, it is not enough that the court would have taken a different view of the matter.[23] A decision which is made within that area of decisional freedom is not affected by jurisdictional error on the ground of legal unreasonableness.[24]
[22]Li, supra (2013) 249 CLR 332, [28] (French CJ), [65]-[66] (Hayne, Kiefel and Bell JJ); SZVFW, supra (2018) 357 ALR 408, [51] (Gageler J), [89] (Nettle and Gordon JJ).
[23] (2013) 249 CLR 332, [75] (Hayne, Kiefel and Bell JJ); [30] (French CJ), [107] (Gageler J).
[24] SZVFW, supra (2018) 357 ALR 408, [11] (Kiefel CJ), [51] (Gageler J),
Ascertainment of the standard by which a test of legal unreasonableness is to be measured then requires that consideration be given to the scope and purpose of the statute conferring the power and its object.[25] Where a statutory power is conditioned by an obligation of legal reasonableness, a decision that is made in breach of that standard “lies beyond the scope of the authority conferred by the power.”[26] In SZVFW, the court’s task in determining a claim grounded upon legal unreasonableness was stated by Nettle and Gordon JJ in there terms:
That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.[27]
[25]Li, supra (2013) 249 CLR 332, [67], [72]-[74] (Hayne, Kiefel and Bell JJ); cf [23] (French CJ), [109] (Gageler J); (2018) 357 ALR 408, [12] (Kiefel CJ), [79], [90] (Nettle and Gordon JJ), [134] (Edelman J).
[26] Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, [53].
[27]SZVFW, supra (2018) 357 ALR 408, [9] citing Li, supra (2013) 249 CLR 332, [67], [90], [109]; Klein v Domus Pty Ltd (1963) 109 CLR 467, 473-474.
As the plurality observed in Li, an administrative decision may be considered as unreasonable in more than one sense:
Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[28] Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is ‘manifestly unreasonable’. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
Their Honours proceeded to identify that a conclusion of legal unreasonableness may flow from an examination of whether a decision-maker had given obviously disproportionate weight to one consideration.
[28] (1986) 162 CLR 24, 41 (Gibbs CJ and Dawson J agreeing at 30, 71).
Legal unreasonableness is not confined to decisions which are characterised as manifestly unreasonable. The two principal contexts in which legal unreasonableness are employed are where an identifiable error has been made and where the outcome of the process is said to be characterised as being legally unreasonable. Examples of identifiable or specific error include cases in which a finding of fact is not supported by any evidence[29] and where a decision-maker’s finding of fact is tainted by illogicality or irrationality.[30] Outcome focussed unreasonableness does not require the identification of a specific error, but proceeds by recognition that an administrative decision-maker is entitled to an area of decisional freedom within which the decision is not susceptible to criticism on the ground of legal unreasonableness, notwithstanding that the court might have formed another view of the matter. As has been emphasised, in an outcome based challenge it is crucial to recognise that it is erroneous in the task of judicial review for the court to assess what it regards as being a reasonable outcome and thereby conclude that any other view (i.e. that of the decision-maker) necessarily involves error. Instead, the quality of the decision must be assessed.[31]
[29]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-356 (Mason CJ); Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) 93 ATR 775, [62] (Jessup J); [83]-[84] Jagot J).
[30] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
[31]Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 [12] (Allsop CJ); Li, supra (2013) 249 CLR 332, CLR [66], [105].
The determination of legal unreasonableness is heavily fact dependent and inherently sensitive to context.[32] The concept is not exhausted by rationality or capable of reduction to a formula.[33] It is not confined by closed categories, nor limited to specific errors.[34] No single test of legal unreasonableness can be stated. To approach an outcome (result) based challenge by requiring the identification of specific error would foreclose the availability of relief that should be granted in cases where the result was not “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”[35] In such cases, it is not necessary to identify specific error – to do so would also foreclose the availability of relief in cases where the result bears the character of being legal unreasonable.[36] An assessment of the quality of the decision is required. As the assessment is heavily fact dependent and context sensitive, it is inappropriate to reason by reference to other decisions.[37]
[32] SZVFW, supra (2018) 357 ALR 408, [59] (Gageler J), [84] (Nettle and Gordon JJ).
[33] SZVFW, supra (2018) 357 ALR 408, [59] (Gageler J).
[34] SZVFW, supra (2018) 357 ALR 408, [81] (Nettle and Gordon JJ).
[35]SZVFW, supra (2018) 357 ALR 408, [82] (Nettle and Gordon JJ) citing Li, supra (2013) 249 CLR, [105].
[36]SZVFW, supra (2018) 357 ALR 408, [83] (Nettle and Gordon JJ).
[37]DPI17 v Minister for Home Affairs [2019] FCAFC 43, [37] (Griffiths and Steward JJ).
A conclusion of legal unreasonableness may be inferred from the facts which were raised for consideration. The court may infer legal unreasonableness upon a decision which involved the exercise of a discretionary statutory power. The court may reach that conclusion, including where it is only possible to infer that there had been a failure in some way to properly exercise the discretion. The principle so recognised by the plurality in Li was confined to decisions involving an exercise of discretion. It was not stated by reference to the legal unreasonableness grounded upon erroneous fact finding. That said, it is clear that the categories of legal unreasonableness are not closed.
The test of legal unreasonableness is strict. That is because the court’s role on judicial review is supervisory and confined: “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.”[38]
[38]Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J); SZVFW, supra (2018) 357 ALR 408, [51].
The function of review which the Tribunal must perform pursuant to s 414 is its core function.[39] On merits review, an applicant is entitled to an opportunity to give evidence and present arguments on the issues arising in relation to the decision under review. In conducting such a review, the Tribunal must act according to substantial justice and the merits of the case[40], and to that end is conferred with the powers in Div. 3 of Part 7. The statutory obligation to act according to substantial justice and the merits of the case does not provide an independent ground of review but facilitates that a Tribunal is, to some extent, freed of constraints applied in courts.[41] In Li, Gageler observed that, while the erroneous application of the obligation to act in a way which was fair, just, economical, informal and quick and according to substantial justice and the merits of the case did not amount to an failure to comply with a requirement essential to the valid performance of the duty to review a decision, the neglect to apply those requirements would do so.[42]
[39] Li, supra (2013) 249 CLR 332, [5], [12], [22] (French CJ), [112] (Gageler J).
[40] Act, s 420(b).
[41]Li, supra, (2013) 249 CLR 332, [12] (French CJ), [52] (Hayne, Kiefel and Bell JJ), [96] (Gageler J).
[42](2013) 249 CLR 332, [97], citing R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 (Rich, Dixon and McTiernan JJ); see also at [124].
In Li, the High Court unanimously affirmed the decision of the Full Court dismissing an appeal from an order of a Federal Magistrates Court which made orders quashing a decision, remitting it for reconsideration in circumstances where the Tribunal had refused a two week adjournment. The Tribunal’s decision to refuse to exercise its power to adjourn a hearing in that case was held to constitute an unreasonable failure to exercise the core statutory function of reviewing the decision.
More recently, in Minister for Immigration and Border Protection v SZVFW[43] the Court again considered the nature of judicial review where the administrative decision turned upon the exercise of discretionary powers. In that appeal, a Tribunal had exercised a power to make a decision on review where the applicants had been invited, but failed, to submit documents relating to issues arising on the decision under review. They had also failed to attend a hearing of which they had been notified. Reversing the decision of the Full Court, it was held that the Tribunal’s decision to proceed was not affected by legal unreasonableness.
[43] (2018) 357 ALR 408.
Li was a claim for relief where the jurisdictional error was grounded upon a want of procedural fairness. It was in the context of procedural fairness that the Court stated the principles to be applied upon judicial review where it was claimed that a discretionary statutory power had been exercised in a manner such as to warrant the conclusion that its decision lacked an evident and intelligible justification.
Contrastingly, SZVFW was concerned with legal unreasonableness, the task of judicial review and the nature of an appeal from such review.
In both Li and SZVFW, the Court confirmed as applicable to the exercise of a statutory power by an administrative decision-maker the settled principle that a statutory discretion is constrained by an obligation that it will be exercised reasonably.[44] The concept of reasonableness does not require that the administrative decision be one which is advantageous to the person affected by it, or that the Tribunal should postpone or refrain from making a decision on each occasion an applicant requests that it do so or seeks further time to lodge material.[45]
[44]Li, supra (2013) 249 CLR 332, [23] (French CJ), [63], (Hayne, Kiefel and Bell JJ), [94] (Gageler J); SZVFW, supra (2018) 357 ALR 408, [4] (Kiefel CJ); [51] (Gageler J); [80], [89] (Nettle and Gordon JJ); [131] (Edelman J).
[45] SZVFW, supra (2018) 357 ALR 408, [15] (Kiefel CJ); [96] (Nettle and Gordon JJ).
As the Minister correctly submitted, Li was not a case that entailed consideration of the principles applicable to judicial review where a challenge was made to a Tribunal’s findings of fact. Li concerned judicial review for jurisdictional error grounded upon a want of procedural fairness. The Court held that the scope of the obligation to exercise a statutory discretion reasonably was not confined to a standard of Wednesbury reasonableness.[46] Rather, it extended to permit the grant of relief upon judicial review of a decision made in exercise of a statutory power which, when properly construed, was found to have been abused.[47] Such a conclusion was open, including by inference and where it lacked an evident and intelligible justification.[48]
[46] (2013) 249 CLR 332, [22] (French CJ), [47], (Hayne, Kiefel and Bell JJ).
[47](2013) 249 CLR 332, [27] (French CJ), [67], [69] (Hayne, Kiefel and Bell JJ), [58] (Gageler J); [80] (Nettle and Gordon JJ).
[48] (2013) 249 CLR 332, [68], [76], (Hayne, Kiefel and Bell JJ), [105] (Gageler J).
However, a distinction is to be maintained between the performance of the function in finding a jurisdictional fact and the exercise of power which is discretionary. In Li, French CJ recognised the importance of maintaining that distinction where judicial review was grounded upon Wednesbury unreasonableness.[49] Having examined the principles by which reasonableness constrained the exercise of a statutory discretion, his Honour stated:
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu[50] that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence.” (emphasis added)
[49] (2013) 249 CLR 332, 348 [22].
[50] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, [40]
In a similar vein, Gageler J emphasised that the test to be applied on judicial review grounded upon legal unreasonableness is stringent.[51] Accordingly, the claims in which it is established that an administrative decision made upon the exercise of a discretionary statutory power was affected by legal unreasonableness will be rare.[52] As Gageler J stated:[53]
Expression of the standard of legal reasonableness in terms of the minimum to be expected of any “reasonable repository of the power” in the circumstances of the impugned decision or action has the benefit of emphasising both the ‘extremely confined’[54] scope and context-specific operation of the limitation it imposes.
Nettle and Gordon JJ also held[55] that it would be a rare case to find that the exercise of a discretionary power was unreasonable where its reasons demonstrated a justification for that exercise of power.
[51] Li, supra (2013) 249 CLR 332, [108]; SZVFW, supra (2018) 357 ALR 408, [11] (Kiefel CJ).
[52](2013) 249 CLR 332, [112]-[113]; see also DPI17 v Minister for Immigration and Border Protection [2019] FCAFC 43, [110]-[111] (Mortimer J).
[53] SZVFW, supra (2018) 357 ALR 408, [52].
[54] Citing Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J).
[55] SZVFW, supra (2018) 357 ALR 408, [84].
Gageler J’s statement was made when explaining how principles of legal unreasonableness were to be understood in the context of the ‘exhaustive’ proposition that “[t]he duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.”[56] His Honour proceeded to state[57] that references as to legal unreasonableness as an abuse of power did not authorise a court to impermissibly enter upon merits review:
So much was recognised in the joint judgment in Li in the statements that “courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power” and that “[p]roperly 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”
[56] SZVFW, supra (2018) 357 ALR 408, [51], citing Quin.
[57] SZVFW, supra (2018) 357 ALR 408, [58], citing Li, (2013) 249 CLR 332, [66].
Again, in SZVFW, the Court was unanimous that in the circumstances of that case, no question arose as to the application of the settled principles which apply to the restraint to be accorded on appeal from a decision which entailed the exercise of a discretionary power.[58] To the contrary, the Court was required to reach its own conclusion on whether the decision was affected by legal unreasonableness.[59] Thus, a description of the standard of review as being largely evaluative may mislead unless understood as a process of characterisation of whether conduct was legally unreasonable that was informed by the terms, scope and policy or the statute and fundamental values.[60] The evaluative task is more accurately understood as requiring an assessment of the quality of the administrative decision having regard to the evidence and materials before it and the submissions which were made.
[58]SZVFW, supra (2018) 357 ALR 408, [18] (Kiefel CJ) citing House v R (1936) 55 CLR 499, 504-5.
[59] SZVFW, supra (2018) 357 ALR 408, [20] (Gageler J).
[60]SZVFW, supra (2018) 357 ALR 408, [44], [59] (Gageler J) citing Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, [9]-[11] (Allsop CJ); see also [82], [88] (Nettle and Gordon JJ), [135] (Edelman J).
As the analysis in SZVFW demonstrates,[61] it is erroneous to reason that all decisions involving the exercise of discretion require that the principles settled in House v R[62] are to be applied on appeal. As the Court observed, the range of discretionary decisions will include, for example, those in which a conclusion is reached that conduct was unconscionable, or as to the measure of damages, or the length of a custodial sentence. It will also include decisions in exercise of a statutory power (including on matters of practice and procedure), which involve value judgments where “there is room for reasonable difference of opinion, no opinion being uniquely right”.[63] Where a discretionary power is conferred on a decision-maker, restraint is required in the conduct of judicial review from that decision. The need for such restraint is informed in part by the breadth of the decision making power. In SZVFW, Edelman J referred Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission[64] where it was stated:
The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
[61]SZVFW, supra (2018) 357 ALR 408, [43] (Gageler J), [85]-[87] (Nettle and Gordon JJ); [150] (Edelman J) citing Norbis v Norbis (1986) 161 CLR 513, 517-518.
[62] (1936) 55 CLR 499.
[63]Cf SZVFW, supra (2018) 357 ALR 408, [43], [49], [54] (Gageler J), [132], [150] (Edelman J); Norbis v Norbis (1986) 161 CLR 513, 517-518 (Brennan J).
[64] (2000) 203 CLR 194, [19] (Gleeson CJ, Gaudron and Hayne JJ).
As noted above, s 65 is expressed in imperative terms such that the decision-maker must grant the visa application if satisfied that the applicable criteria are satisfied and must refuse it if not so satisfied. To the extent that s 65 discloses a latitude in the process of the decision, it is essentially dependent on the state of satisfaction that is reached in arriving at the correct or preferable decision upon the evidence and submissions that are before the decision maker. The position is, of course, otherwise where the decision-maker is concerned in the exercise of a discretionary power in the course of conducting the process of review. In that context, the decision maker is addressing exercise of those discretionary powers.
As Gageler J stated in SZVFW, where the legal criterion to be applied in the determination of an application demands a unique outcome, the process of review requires a conclusion on whether the decision was correct.[65] The Court held that the question of whether or not a decision taken in exercise of a statutory power was legally reasonable was one to which a unique answer was required and for which the court could give only one answer.[66] That is, the answer did not turn upon discretionary considerations.[67] To similar effect, Nettle and Gordon JJ stated (Kiefel CJ agreeing) that:[68]
On review, a conclusion by a primary judge that a decision-maker has exercised a power in a manner which is unreasonable does not depend upon the exercise of any discretion by the primary judge. It may involve an evaluative process. But labelling the task of a primary judge as ‘evaluative’ does not entitle an appeal court to determine, for example, that the purported exercise of power by the decision-maker was valid because it was not legally unreasonable but then, nonetheless, go on to conclude that it was open to the primary judge to reach the opposite view.
[65] (2018) 357 ALR 408, [49].
[66](2018) 357 ALR 408, [18], [54]-[59], [76], [127], [154]-[155].
[67](2018) 357 ALR 408, [60]; see also Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, [25] (Allsop CJ).
[68] (2018) 357 ALR 408, [85], [18] (Kiefel CJ).
I accept the Minister’s submission that Li entailed consideration of the principles of legal unreasonableness in the context of a decision made in the exercise of a statutory discretion. It did not concern the approach that is to be taken upon judicial review where the ground upon which jurisdictional error is that the decision-maker’s fact finding was flawed.
I am less persuaded that nothing in Li indicated that it was open to a court to review a Tribunal’s factual findings to determine whether or not they had an adequate justification. Some support for that proposition may be discerned from the fact that SZMDS, the seminal authority respecting the principles applicable in the conduct of judicial review of administrative fact finding (and which was decided three years before Li), received but passing reference in Li. French CJ referred to Li as an authority which underlined the importance of maintaining the distinction between the review of a decision-maker’s process of fact finding and the exercise of discretion.[69] His Honour, together with Gageler J, also referred to Li as confirming the implication of an obligation of reasonableness in relation to the exercise of a statutory power. [70] Contrastingly, the plurality did not cite or consider SZMDS at all. No member of the Court in Li considered whether the principles stated in SZMDS were modified such as to authorise a court to determine whether findings of fact were subject to scrutiny on the principles stated in Li as applicable to the exercise of a discretionary power.
[69] (2013) 249 CLR 332, [22].
[70] (2013) 249 CLR 332, [29], [89].
Again, in SZVFW which also concerned judicial review where the challenge was based upon the exercise of a discretionary power, SZMDS was cited only by Edelman J.[71] Earlier, his Honour had stated that the appeal in SZVFW was concerned only with legal unreasonableness as an independent ground of review and not in any wider sense.[72]
[71] (2018) 357 ALR 408, [134].
[72] (2018) 357 ALR 408, [131].
The more persuasive submission is then that SZMDS authoritatively states the principles applicable to the judicial review grounded upon a claim of erroneous fact finding.
Judicial review of fact finding
An administrative decision may be vitiated by jurisdictional error if the determination was “irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.”[73] Thus, the judicial review of an administrative decision, the challenge of which is based upon irrationality, illogicality or upon findings or inferences of fact said not to be supported on logical grounds, entails consideration of the fact finding process undertaken by the administrative decision-maker in reaching its decision.
[73]Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ); Gill v Minister for Immigration and Border Protection [2017] FCAFC 51, [59] (Griffiths and Moshinsky JJ).
When an administrative decision is found to be wholly illogical or irrational, this may ground a conclusion that the decision is affected by jurisdictional error such as to attract prerogative relief.[74]
[74] SZMDS, supra (2010) 240 CLR 611, [40], [57], [96], [121], [130]-[133], [135].
Where a challenge to an administrative decision is grounded upon irrationality or illogicality, the correct approach is to ask whether it was open to the decision-maker to engage in the reasoning process which had been engaged in or to make the findings which were made on the material that was before it.[75] It is well settled that a challenge grounded upon irrationality will not be made out where the impugned decision is one upon which reasonable minds might differ.[76] Nor will an irrationality challenge be made out merely by demonstrating that a finding was factually incorrect.[77] Instead, the impugned finding must be shown to have been material to the ultimate decision.[78]
[75]SZMDS, supra (2010) 240 CLR 611, [133] (Crennan and Bell JJ); Minister for Immigration and Citizenship v SZKRT [2013] FCA 317, [151]-[153] (Robertson J); CQG15 vMinister for Immigration and Border Protection [2016] FCAFC 146, [60] (McKerracher, Griffiths and Rangiah JJ); ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174, [47] (Griffiths, Perry and Bromich JJ); Gill, supra [2017] FCAFC 51, [65] (Griffiths and Moshinsky JJ).
[76]SZMDS, supra (2010) 240 CLR 611, [135]; Gill, supra [2017] FCAFC 51, [62]; ARG15, supra [2016] FCAFC 174, [47]; CQG15, supra [2016] FCAFC 146, [60].
[77] ARG15, supra [2016] FCAFC 174, [53].
[78]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [89] (McHugh, Gummow and Hayne JJ); SZWCO v Minister for Immigration and Border Protection [2016] FCA 51, [64]-[67] (Wigney J); Gill, supra [2017] FCAFC 51, [65] (Griffiths and Moshinsky JJ).
The principles respecting irrationality and illogicality in the process of administrative decision-making were stated in Minister for Immigration and Citizenship v SZMDS.[79] The test is a stringent one and was stated by Crennan and Bell JJ as follows:[80]
. . . the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Later their Honours stated:[81]
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.
Extreme illogicality or irrationality must be shown for relief to be available: DAO v Minister for Immigration and Border Protection;[82] ARG15 v Minister for Immigration and Border Protection;[83] CQG15 v Minister for Immigration and Border Protection.[84]
[79] (2010) 240 CLR 611.
[80] (2010) 240 CLR 611, [135].
[81] (2010) 240 CLR 611, [135].
[82] (2018) 353 ALR 641, [30] (Kenny, Kerr and Perry JJ).
[83] (2016) 154 ALD 174, 47] (Griffiths, Perry and Bromwich JJ).
[84] [2016] FCAFC 146, [60] (McKerracher, Griffiths and Rangiah JJ).
To establish illogicality or irrationality sufficient to give rise to jurisdictional error in refusing a Protection visa, it must be demonstrated that the decision as to the state of satisfaction required by s 65 was one which no rational or logical decision maker could have arrived at on the same evidence as was before the Tribunal.[85] By extension, this court cannot conclude that a decision was irrational, illogical or unreasonable because the Tribunal reached one decision over another where the probative evidence was capable of supporting different processes of reasoning which were logically, rationally or reasonably open.[86]
[85] SZMDS, supra (2010) 240 CLR 611, [130] (Crennan and Bell JJ).
[86] SZMDS, supra (2010) 240 CLR 611, [131] (Crennan and Bell JJ).
Accordingly, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning which it adopted.[87]
[87] SZMDS, supra (2010) 240 CLR 611, [133] (Crennan and Bell JJ).
In SZMDS,[88] Crennan and Bell JJ identified three means by which a decision might be shown to be demonstrably illogical or irrational:
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.
This statement of principle has been applied by intermediate appellate and first instance courts on many occasions.
[88] SZMDS, supra (2010) 240 CLR 611, [135]; see also [78], (Heydon J).
To similar effect, in Minister for Immigration and Border Protection v Sabharwal[89] Perram, Murphy and Lee JJ, citing SZMDS, held that:
lllogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material[90] . . .
The Full Court endorsed the analysis of Allsop CJ in Minister for Immigration and Border Protection v Stretton[91] that the question was:
. . . whether a decision-maker could reasonably come to the conclusion reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.
See also Singh v Minister for Home Affairs.[92]
[89] [2018] FCAFC 160, [45] (Perram J, Allsop CJ and Lee J agreeing).
[90] Citing SZMDS, supra [130]-[132] and [135] (Crennan and Bell JJ), [78] (Heydon J).
[91] [2016] FCAFC 11; (2016) 237 FCR 1, [21].
[92] [2019] FCAFC 3, [57] (Reeves, O’Callaghan and Thawley JJ).
The Full Court has repeatedly accepted that findings or reasoning ‘along the way’ to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error.[93] A finding ‘along the way’ to the ultimate conclusion that the criteria for the grant of a Protection visa had not been satisfied may commonly involve an adverse credibility finding (as indeed occurred in these applications).
[93]See eg. SZMDS, supra (2010) 240 CLR 611, [132] (Crennan and Bell JJ); DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641, [30(4)]; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [34]; Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [45].
Credibility
As noted above, the Tribunal reasoned that it had concerns as to the applicants’ credibility and the plausibility of their claims. An adverse credibility finding which is illogical or irrational may suffice to establish error of a kind which is properly to be characterised as jurisdictional.
In BZD17,[94] Perram, Perry and O’Callaghan JJ stated that:
. . . findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error.[95] This is particularly so where, relevantly, the adverse credibility finding was a critical step in the Tribunal’s decision that it was not satisfied that an applicant met the criteria for the grant of a visa.[96]
[94] [2018] FCAFC 94, [34].
[95] Citing SZMDS, supra (2010) 240 CLR 611, [132].
[96]Citing DAO16 at [30(4)] (approving Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, [56] (Wigney J)).
The approach to be taken to adverse credibility findings was stated by the Full Court in DAO16 v Minister for Immigration and Border Protection (in the context of legal unreasonableness), as follows:[97]
[97] (2018) 353 ALR 641.
(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.[98] 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.[99] In each case it is necessary to analyse in detail what the decision-maker has decided.[100]
[98]Citing CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, [37]-[38] (the Court).
[99]Citing ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109, [83](b)).
[100]Citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, [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.[101] In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS[102] that:
[101] Citing ARG15, supra [83](d).
. . . 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.
(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[103] (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.[104]” 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”.[105]
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error.[106] 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[107] (in a passage approved in CQG15 at [60]) that:
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.[108] 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.”[109] Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality.”[110]
[104]Citing WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676, [54]
[105]Citing SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113, [37].
[106] Citing SZMDS, supra [132].
[108] SZMDS, [96]; SZVAP,[14]-[15].
[109] Citing SZRKT,[148]; SZMDS, [135] and CQG15, [60].
[110] Citing CQG15, [61].
Aggregation leading to legal unreasonableness?
A point of contention arose with respect to the applicants’ submission that a conclusion of unreasonableness could be drawn by aggregating the Tribunal’s reasoning in relation to each of six cited examples, such that a conclusion of legal unreasonableness could be made notwithstanding that no finding of unreasonableness had been made in relation to each of the individual findings. Initially, the applicants expressly eschewed a contention that the findings on any one of the six postulated examples were legally unreasonable. Instead, the applicants submitted that:
. . . when all the findings are taken in aggregate it emerges that the decisions lack an evident and intelligible justification and that the matter must be remitted for further determination . . .
However, in oral submissions it was contended that one of the matters taken on its own was capable of supporting a conclusion of legal unreasonableness. I address that issue further below at [126]-[129].
Perhaps unsurprisingly, counsel for the Minister challenged the submission that a finding of legal unreasonableness could properly be reached by this so-called process of ‘aggregation’. Counsel submitted that if by application of the principles stated in SZMDS a court concluded that the finding on an issue of fact was neither irrational nor illogical, then one could by no legitimate means aggregate those findings and conclude that, viewed as a whole, the decision of the Tribunal was nonetheless legally unreasonable.
In my view, the reasoning employed by the Tribunal did adequately expose the basis on which it had questioned the applicants as to this topic. In terms of unstated assumptions, the facts explored by the Tribunal included the chronology of the parties’ relations from school age to their travels to Australia, their cohabitation in a two bedroom apartment over a period of some four years during which BFH’s younger brother had been unaware of their relationship. In circumstances where the applicants’ claimed they had no (or practically no) previous homosexual or other sexual experience until the night of BFH’s birthday, the Tribunal was entitled to explore whether, in the morning after they had first had sex, the applicants had discussed the implications of that first homosexual liaison. It was entirely open to the Tribunal to examine that topic in the context of whether the applicants’ claims to be homosexual were credible – this being identified in their joint submission as the central issue in the application.
Contrary to the applicants’ submission, the finding on this issue did not lack an intelligible justification. As Nettle and Gordon JJ observed in SZVFW,[130] the conclusion that a decision lacks an evident and intelligible justification is one basis on which the court might make a finding of jurisdictional error by reference to the outcome of a decision. The Tribunal was entitled to find that the applicants had no clear narrative respecting their discussion on the day after first having revealed their sexuality to one another and after having had their first homosexual experience. It was one which a reasonable decision-maker could have come to.
[130](2018) 357 ALR 408, [82] citing Li, (2013) 249 CLR 332, [76], [98] and [105]; see also [10] (Kiefel CJ).
Conduct in frequenting gay saunas in Melbourne
The applicants also submitted that there was no clear evidential basis for the finding that it was anomalous the applicants would have attended a sauna in Melbourne that was known to be frequented by homosexuals. The Tribunal said that for the applicants to have gone together to the Subway Sauna was anomalous because it was likely that the sauna was a place they would likely be propositioned for casual sex. It was said not to be evident from the Reasons why the applicants’ conduct in attending a known gay sauna would rationally demonstrate that the applicants were not homosexual and that the Tribunal’s reasoning on this issue demonstrated an unusually selective approach.
The Tribunal’s analysis of this topic proceeded by reference to the applicant’s claims that they were quite deliberately secretive of their homosexuality and had a monogamous relationship. They claimed not to have disclosed their sexuality either while in Pakistan or in Australia. Nor had their relationship been disclosed, including to BFH’s brother, in the period of four years while they had shared a bedroom in a two bedroom apartment. They had professed not to email one another for want of maintaining the secrecy surrounding their homosexuality and their relationship. The Tribunal observed that their mobile phones stored photos, many of which had been adduced in evidence both before and after the Tribunal hearing.
The Tribunal put to the applicants that the Subway Sauna website made it clear that persons attending that venue would likely be propositioned for casual gay sex. It was open on the whole of the material before it for the Tribunal to conclude that it would be anomalous for the applicants to have erected a barrier of secrecy around the fact of their claimed homosexuality, their monogamous relationship and at the same time to have chosen to have attended such a venue.
While the applicants relied upon this finding as another example of bootstraps logic, they accepted that the reasons of a Tribunal were to be read fairly. On the principles stated in SZMDS, it cannot be said that the finding was one which no reasonable decision-maker could not have come to on the same materials as were before this Tribunal.
Gay profile:
The Tribunal also found that the applicants had employed their attendance at the Subway Sauna and other gay venues in order to create a gay profile for themselves. The applicants contended that this reasoning pulled in the opposing direction to the earlier reasoning, whereby the Tribunal suggested that it was anomalous the applicants as men who were seeking to preserve the secrecy of their homosexual relationship, would attend a gay sauna where they were at risk of being proposition by other men for casual sex.
The applicants accepted that those two propositions were not mutually exclusive or incompatible. To the contrary, their complaint was that the commonality found in each proposition was a selective approach taken by the Tribunal in order to make findings on credibility which are adverse to the applicants.
The Tribunal was conscious that it was not required to accept uncritically everything which was said by the applicants. Their evidence was that they attended the Subway Sauna and a known gay club in Collingwood.
For the reasons stated at [117]-[119] above, I do not discern error of a kind which would properly be characterised as jurisdictional.
Maintaining façade of heterosexuality
The applicants submitted that the Tribunal engaged in a line of reasoning that they would have been unable to maintain the façade of heterosexuality with their families once they had applied for a Protection visa grounded on their claims of fear and harm by virtue of their homosexuality[131], but that their conduct was entirely consistent with their stated fear of persecution in Pakistan and with their claims that they were attempting to live discreetly without their families knowing of their homosexuality.
[131] BFH, [43]; BFI, [41].
The Tribunal’s reasoning in this respect was vulnerable to the criticism levelled by the applicants. However, the weight which was attached by the Tribunal to this consideration was not decisive and was open to a reasonable decision-maker to arrive at on the material before it. Where an 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.[132]
[132] CQG [2016] FCAFC 146, [60] citing Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, [55] (Wigney J).
Attaching no weight to statutory declaration
The applicants complained that the Tribunal had attached no weight to Mr Kryezi’s statutory declaration on the stated basis that it could not know the reason that the statement had been provided. The applicants complained that the Tribunal had dealt with the statutory declaration in a cursory way, thereby demonstrating that it had cut corners in the process of evaluation to prefer particular evidence. The applicants contended that Mr Kryezi’s evidence significantly contradicted other findings of the Tribunal, and complained that the evidence had been excluded on an improper basis. It was submitted that this finding alone was capable of supporting a conclusion of unreasonableness.
It is clear that the decisions of a Tribunal in relation to issues of credit are not beyond scrutiny. However, the case is to be distinguished from those in which reasons contain no reference of any kind to statutory declarations[133] or to reasons which indicate that evidence had not been considered.[134] The evidence of Mr Kryezi was not excluded from consideration. It was acknowledged and referred to. The statutory declaration ran to four brief paragraphs and was apparently supplied by the applicants in response to an observation in the delegate’s decisional record that there was a paucity of evidence supporting their claim.
[133] Eg, Nguyen v Minister for Immigration and Border Protection [2018] FCA 1374, [40].
[134]Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, [52]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67, [32]-[34].
There was both a consciousness and consideration of the statutory declaration’s brief content. It was not ignored and it cannot be said that there was a failure to address it. There was some force in the applicants’ submission that the Tribunal’s statement that it did not know the motivation of Mr Kryezi for having made the declaration. However, it was a matter for the Tribunal to determine the weight to be attached to the evidence before it. On a fair reading of the Reasons, I conclude that the Tribunal considered that it was a matter for it to assess for itself on the whole of the material before it whether it accepted if the applicants were homosexual or in a monogamous relationship.
The present case is to be distinguished also from those in which a Tribunal concludes that the evidence of a witness has been fabricated.[135] Nor was the Tribunal’s decision to attach no weight to the statutory declaration considered to be dispositive[136] of the claim to be members of a particular social group. Nor was it critical[137] to the conclusion that the applicants were not homosexuals or in a monogamous relationship. Nor was it fatal to their claim.[138] The Tribunal’s conclusion was one which was open to a reasonable decision maker upon the whole of the material and evidence that was before this Tribunal.
[135] DAO16, supra (2018) 353 ALR 641, [40].
[136] Ibid.
[137] ABA15, supra [2016] FCA 1419, [39], [53]-[58].
[138] Cf Li, supra, (2013) 249 CLR 332, [31].
Overview
Notwithstanding the applicants’ complaints in relation to each of the six matters addressed above, I consider that the Tribunal’s decision was within the range of possible, acceptable outcomes which was defensible on the facts presented when measured against the criteria which the Tribunal was obliged to apply.[139] I do not consider that, based upon the evidence, materials and submissions before it, the quality of the decision that the applicants were not in a homosexual relationship with one another fell beyond the area within which the Tribunal was required to decide whether it was satisfied as to the criteria in ss 36(2)(a)-(aa). No complaint was made, and in my opinion none could have been given, of the finding that the question of delay, including the applicants’ earlier visa history, was relevant to the Tribunal’s consideration of the matter.
[139] SZVFW, supra (2018) 357 ALR 408, [82], Li, supra (2013) 249 CLR 332, [105].
The manner in which the Tribunal approached the matter was consistent with the applicants’ joint submission that the credibility of their claim to be homosexual and in a monogamous relationship was the central issue arising upon the review of their applications. I consider that the Reasons confirm the Tribunal gave genuine consideration to those claims. I do not discern that the conclusion reached by the Tribunal demonstrates that in some way there had been a failure to exercise the power conferred on it to consider whether it was satisfied the criteria for the grant of a Protection visa had been met. It was for the Tribunal to determine what weight it gave to particular evidence.[140] As was accepted, the reasons of a Tribunal are not to be read in an overzealous fashion or with an eye keenly attuned to error.[141] Nor is it the case that every lapse in logic or erroneous finding of fact or failure to find a fact will suffice to demonstrate error or support a claim of jurisdictional error.[142]
[140]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; NADR v Minister of Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167, [9].
[141] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
[142] Ibid.
Conscious of the court’s supervisory jurisdiction upon judicial review, I do not accept that the decision is tainted by jurisdictional error grounded upon legal unreasonableness. Ground 1 is rejected.
Ground 2 – failure to consider true claim
Amended Ground 2 reads:
The Tribunal failed to consider the applicant’s true claim for protection.
The applicant advanced Ground 2 upon the principles stated in SZSZW Minister for Immigration and Border Protection.[143] There, Perry J applying well settled principles, held that a failure to consider each claim by an applicant constituted a failure to exercise jurisdiction. Her Honour’s analysis was focussed upon the question of whether the applicant held a well-founded fear of persecution and, noting the obligation to identify and conduct a review of the claim which was made and its integers, underscored the need to assess whether the Tribunal had engaged in an active intellectual process with a consciousness and consideration of the submissions, evidence and material relied upon.
[143] [2015] FCA 562, [15]-[19].
The applicant contended that Ground 2 arose by reason of the “credibility focused approach” adopted by the Tribunal in determining the applicants’ claims. They submitted that the Tribunal concentrated its consideration of the matter upon the credibility of the applicants’ claim that they were in a homosexual relationship. The applicants submitted that by approaching its task in that way, the Tribunal did not consider, or did not consider properly, the claim of both applicants that they were homosexuals. In this regard the applicants pointed to the Tribunal’s glancing reference to the applicants’ claims to be homosexual men: see at BFH, [46]; BFI, [49].
The applicants also advanced Ground 2 on an alternative basis; namely, that the requirement to consider each of the applicants’ claims extended to a requirement to consider the matters set out in s 36 of the Act: Minister for Immigration and Border Protection v MZYTS.[144] The Full Court there dismissed an appeal from a decision which had found a Tribunal to have erred in failing to consider recent country information. Kenny, Griffiths and Mortimer JJ held[145] that the Tribunal’s failure to consider more recent country information constituted a failure to form the satisfaction required by para 36(2)(a) of the Act, in that the Tribunal had not considered what would happen to the applicant as a supporter of the Movement for Democratic Change upon his return to Zimbabwe. The applicant submitted, by analogy with MZYTS, that the Tribunal had not engaged with the question of what would or might occur to the applicants as homosexual men living in Pakistan, and had accordingly failed to form the satisfaction required by para 36(2)(a) and thereby failed to exercise jurisdiction. Attention was drawn to the Court’s statements in MZYTS[146], in which the Tribunal had failed to give any consideration to post-hearing submissions respecting more recent country information that was directly relevant to the applicant’s claim to hold a well-founded fear of persecution.
[144] [2013] FCAFC 114.
[145] [2013] FCAFC 114, [46] and [62].
[146] Ibid.
Ground 2 was not particularised. I agree in the Minister’s submission that it is clear from the Reasons that the Tribunal had considered the claims of each applicant as to whether they had a well-founded fear of persecution in Pakistan or would face a real risk of significant harm if returned to Pakistan on the basis that they were homosexual men: BFH, [45]-[46]; BFI, [30], [43]. This was the central issue in their applications. It was advanced as such by their joint submission. The applicants consented to their applications being heard concurrently. Insofar as the applicants had supplied additional photos after the hearing, the Reasons confirm[147] that the Tribunal was conscious of the receipt of those photos. MZYTS is plainly distinguishable from the present case. It is also distinguishable from the circumstances of DAO16 in which the Tribunal had dismissed the evidence of all 16 witnesses.[148]
[147] BFH, [18], BFI, [18].
[148] (2018) 353 ALR 641, [32].
I accept the Minister’s submission that it was entirely unsurprising that the Tribunal had focused upon the applicants’ claims to being homosexual and to being in a monogamous relationship with one another in the circumstances that those matters were integral to their claims. By contrast, it would have been remarkable for the Tribunal to have done other than give active consideration to their claims. Their membership of the particular social group had been the only basis on which they had advanced their claims to protection.
In all of those circumstances, I do not accept that the Tribunal was not conscious of the claims which each of them made, or that it failed to give active and genuine consideration to their individual claims.
In light of the Tribunal’s finding that neither applicant was in a monogamous same sex relationship and that neither applicant was homosexual, it did not consider the further questions posed by ss 36(2)(a)-(aa). To not have done so is only explicable on the basis that the Tribunal entertained no doubt in its conclusion rejecting the applicants’ claims to be homosexual.[149] The Tribunal is not a court and in the discharge of its core function is obliged to act in a way which was fair, just, economical, informal and quick and according to substantial justice and the merits of the case. In my opinion, the Reasons confirm that this is not a case in which the Tribunal neglected to apply those requirements in the conduct of these reviews.[150]
[149] Cf, DAO16, supra (2018) 353 ALR 641, [36].
[150]Li, supra, (2013) 249 CLR 332, [97] (Gageler J); R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 (Rich, Dixon and McTiernan JJ); see also at [124].
As the Reasons confirm, the Tribunal affirmed the delegate’s decision to refuse the visa applications as it was not satisfied that the applicants fell within the social group to which they claimed to belong (homosexuals in Pakistan) and accordingly, was not satisfied that they had a well-founded fear of persecution. The Tribunal rejected the only basis on which they claimed to be refugees, or were entitled to complementary protection. In my opinion, the Tribunal gave genuine consideration to each of their claims.
Ground 2 is rejected.
Ground 3 - findings without evidence
Amended Ground 3 reads:
The Tribunal made findings of fact that were not supported by evidence.
Again, this amended ground of review was also unparticularised. The applicants relied upon three factual findings respecting Ground 3.
First, it was noted that the Tribunal had relied on its personal experience in making findings with respect to life in Pakistan, rather than to rely upon evidence such as credible country information. As noted above, the Reasons recorded in BFH, [38] (but not in the case of BFI) that the Tribunal had not accepted the validity of the applicants’ claims that they did not wish to travel together as they feared it would arouse suspicion:
. . . noting from the Tribunal’s personal experience that Pakistan is a highly sex segregated and patriarchal society where it is common for men to be in each other’s close company without that raising any queries about their sexuality . . .
This complaint was made in the context that Ground 3 was intended to refine existing grounds which had been abandoned. Ground 4, which had been abandoned, had contended that it had been impermissible for the Tribunal to rely upon its personal experience rather that country information. The applicants’ reliance upon this issue emerged for the first time in oral submissions.
Secondly, the Tribunal made findings respecting the habits and mores of homosexual men in Australia and the applicants’ attendance at a gay sauna and clubs in Melbourne, being places where the applicants would likely be propositioned for casual sex by other men: BFH, [40]; BFI, [42].
Thirdly, the Tribunal did not accept that the applicants would have lived with the brother of BFH for a period of four years and kept their homosexual relationship secret for this period of time. The applicants pointed to the train of reasoning adopted by the Tribunal in questioning why the applicants had not moved out on their own. Responding to that query, each of the applicants had raised financial considerations as a factor. The Tribunal rejected that evidence, preferring to rely on the fact that each of the applicants had ceased studying in 2011-2012 (in accounting and engineering respectively), and had been working from that time. The Tribunal had not accepted that the applicants could not have supported themselves from that time: BFH, [41]; BFI, [43].
The applicants submitted that the evidential bases for those findings were not set out in the Reasons and were otherwise unclear. Upon that footing, the applicants submitted that each of these findings were jurisdictional facts related to matters relevant to the exercise of power under s 36; namely, the applicants claim to fear harm as homosexual men in Pakistan and their claim to have a well-founded fear of persecution on that basis.
The applicants relied upon and thus accepted the statements of principle in Maxwell v Minister for Immigration and Border Protection[151] from which the following settled propositions may be drawn:
a)a ‘no evidence’ submission is not established merely by pointing to an insufficiency of evidence – there must be no evidence at all on which the impugned finding could have been based;[152]and
b)a jurisdictional fact must be involved before a ‘no evidence’ ground can be established.[153]
On the facts arising in Maxwell, Perry J found that nothing in the Act made the issue upon which the applicant had relied a precondition to the Tribunal’s exercise of jurisdiction. Yet her Honour allowed that where a crucial finding had been made without any evidence, a question would arise as to whether the decision was irrational or illogical. I agree.
[151] (2016) 149 ALD 604, [54] (Perry J).
[152]Citing VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350, [18]-[19] (Gray, Moore and Weinberg JJ); see also Taulahi v Minister forImmigration and Border Protection [2018] FCAFC 22, [31] (Robertson J, North and Besanko JJ agreeing); Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia [2018] FCAFC 74, [27], (Jagot, Bromberg and Rangiah JJ).
[153]Citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, [39] (Gummow and Hayne JJ, Gleeson CJ agreeing); SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995, [57] (Madgwick J).
Counsel for the Minister accepted that where a Tribunal decided a question of fact or drew an inference when there was no evidence in support of such finding or inference, then it makes an error of law.[154] This concession having been made, counsel emphasised that the ‘no evidence’ ground could not be made out unless it is established that there was absolutely no evidence capable of supporting the finding or inference, and further that a ‘no evidence’ ground cuts out when even a skerrick of evidence appeared: Shop, Distributive and Allied Employees Association v National Retail Association (No.2).[155] There Tracey J referred to a statement by the learned authors of Judicial Review of Administrative Action[156] that a ‘no evidence’ ground cut out when even a skerrick of evidence appears. The learned authors repeat that proposition in the current edition of their text.[157]
[154]Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, 418 at [90] – [91] (Hayne, Hayden, Crennan and Kiefel JJ); see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-356 (Mason CJ); Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) 93 ATR 775, [62] (Jessup J); [83]-[84] (Jagot J).
[155] (2012) 205 FCR 227, 235, [31] (Tracey).
[156] 4th ed (2009) at p 259.
[157]See 6th ed (2017), Pt 4.14, [4.600] at p 255.
In ascertaining whether there is ‘no evidence’ capable of supporting a finding, it must be recognised that the Tribunal is entitled to act upon both direct evidence and to draw inferences of fact: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[158] Shop, Distributive and Allied Employees Association v National Retail Association (No.2);[159] Australian Postal Corporation v D’Rozario.[160]
[158] (2004) 78 ALJR 992, 998 – 999 [39] – [41] (Gummow and Hayne JJ).
[159] (2012) 205 FCR 227, 235 [31] (Tracey J).
[160] (2014) 222 FCR 303, 334 [118] (Bromberg).
It is convenient to consider the second and third subjects of complaint before returning to the first of those complaints. Applying the principles stated above, I consider that there was evidence from which the Tribunal might reasonably have inferred that the Subway Sauna was a place where the applicants would likely be propositioned for sex by other men. The Reasons expressly identified that other evidence, including the Subway Sauna website and other promotional material for other gay saunas: BFH, [40]; BFI, [42] and footnotes.
In addition, there was evidence from which it was reasonably open to the Tribunal in infer that the applicants had the financial means to live separately from BFH’s brother from at least March 2012. The applicants’ education and work histories were set out in their Protection visa applications. There was some evidence upon which it was open for the Tribunal to infer that the applicants had the financial means to live separately from BFH’s brother from at least March 2012.
As to the Tribunal’s statement that ‘Pakistan is a highly sex segregated and patriarchal society where it is common for men to be in each other’s close company’ it must be accepted that the Tribunal expressed this statement as a matter based upon its personal experience. The applicants drew attention to s 144(1)(a) of the 1995 (Cth) which regulates the circumstances in which proof is not required about knowledge that is not reasonably open to question, and is a matter of common knowledge in the locality in which a proceeding is being held, or generally. I do not accept that the Evidence Act applied to proceedings before this Tribunal.[161] Further, as counsel for the Minister submitted, the Tribunal is not bound by the rules of evidence.[162]
[161]Part 1.2 of the Evidence Act which concerns the application of that Act, relevantly provides that the Act applies to all proceedings in a Federal Court: sub-s 4(1). Upon the dictionary definition of Federal Court, the Tribunal is not such a court. The dictionary to the Evidence Act is part of the Act. The term Proceeding is not defined by that dictionary: sub-s 3(1A).
[162] Act, s 420(a).
The Tribunal was conducting the review of a Part 7-Reviewable decision. Division 3 of Part 7, which concerns the subject Part 7-Reviewable decisions: Tribunal powers, relevantly provides that the Tribunal is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case: s 420.
The Tribunal rejected the applicants’ evidence that they did not want to travel at the same time in one another’s company because this might raise suspicion that they were in a homosexual relationship. The Tribunal was entitled to observe that men frequently travelled together without being suspected of being in a homosexual relationship with one another. Contextually, it was not inappropriate for the Tribunal to observe that it was common for men to be in one another’s close company in Pakistan.
A precondition or a critical step?
Consideration is required of the consequences of a conclusion, contrary to that expressed at [155] above, that the Tribunal’s statement that Pakistan was a highly sex segregated and patriarchal society where it was common for men to be in each other’s close company was properly characterised as a finding that was unsupported by no evidence. Considerable caution should be exercised before a court concludes that an absence of evidence to support a particular finding or inference constitutes jurisdictional error: Australasian Meat Industry Employees’ Union v Fair Work Australia.[163]
[163] (2012) 203 FCR 389, [92] (Flick J).
The applicable principles were reviewed in Australian Postal Corporation v D’Rozario.[164] The court recognised that it was not settled as to when a finding of fact made in the absence of evidence would amount to jurisdictional error and that two competing approaches were open.[165] Those views are that a finding made with no evidence would amount to jurisdictional error only where the relevant finding was: (1) a precondition to the exercise of jurisdiction; or (2) a critical step in the ultimate conclusion of the decision maker. While Besanko J expressed no concluded view as to which of those approaches was preferable, both Jessup and Bromberg JJ expressed a preference for the first view.[166]
[164] (2014) 222 FCR 303.
[165] 222 FCR 303, [16] (Besanko J).
[166] 222 FCR 303, [66]-[67] (Jessup J), [108]-[109] (Bromberg).
In rejecting a ‘no evidence’ submission in Plaintiff S156/2013 v Minister of Immigration and Border Protection,[167] the Full High Court stated, in relation to the matters upon which the appellant had relied, that:
. . . there was no statutory requirement that the Minister be satisfied of these matters in order to establish the relevant power. They do not qualify as jurisdictional facts.
The Court’s conclusion on this issue was stated in the context of its discussion of mandatory considerations. In SZMDS,[168] Gummow A-CJ and Kiefel J, albeit in a dissenting judgment, endorsed the distinction to be drawn between a ‘no evidence’ ground respecting the existence of a jurisdictional fact from the “more debatable question whether a defective finding of fact afforded an independent ground of judicial review or was indicative of an error of law.”[169]
[167] [2014] HCA 22, [46].
[168](2010) 240 CLR 611, 622, [31], citing Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511, 514 (Wilcox J).
[169] Ibid.
Plaintiff S156/2013 and SZMDS have been regarded as supporting the conclusion that a finding or inference made in the absence of evidence will only give rise to jurisdictional error if the fact in respect of which there was no evidence was a precondition to the exercise of jurisdiction: Buchwald v Minister for Immigration and Border Protection;[170] see also Broadspectrum (Australia) Pty Ltd v United Voice.[171]
[170] (2016) 242 FCR 65 at 76, [39] (Bromberg J).
[171] [2018] FCAFC 139, [35], (Bromberg, Mortimer and Lee JJ).
It is therefore of some importance that the applicants’ submitted, correctly, that the Tribunal’s observation that Pakistan was a segregated and patriarchal society where it was common for men to be in one another’s company was not a precondition to the Tribunal’s exercise of jurisdiction. It followed that, if the Tribunal’s experience based observation: (a) constituted a finding or inference for which there was absolutely no evidence, and; (b) did not constitute a critical step in its ultimate conclusion, the absence of such evidence would not amount to jurisdictional error.
I accept the Minister’s submission that the Tribunal’s observation was not the sole basis for rejecting that evidence. More relevantly, it did not constitute the sole or even a significant basis for the Tribunal’s finding that the applicants were not homosexual and were not in a same sex relationship with one another. In those circumstances, assuming the Tribunal’s observation was properly to be characterised as a finding or inference for which there was no evidence, and it was accepted that the Tribunal’s experience-based observation was not a precondition to the exercise of the Tribunal’s jurisdiction, no jurisdictional error will be demonstrated once it is concluded, as here, that it did not constitute a critical step in the ultimate conclusion of the Tribunal that the applicants were not homosexual and were not in a monogamous relationship with one another.
For the avoidance of doubt, the applicants also relied on each of those matters as being issues which bore upon Ground 1; namely, that the Tribunal’s decision was tainted by legal unreasonableness. For the reasons above, I have rejected that ground of review.
For those reasons the ‘no evidence’ ground is rejected.
Conclusion
It follows that the applications for judicial review must be dismissed.
I note that although the parties agreed that costs should follow the event, a question arose whether it was appropriate for those costs to be fixed at scale in circumstances where two applications for judicial review had been conducted within the one hearing. I will reserve for further consideration the basis on which costs should be fixed or assessed.
I certify that the preceding one-hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 29 March 2019
[102] [2010] HCA 16; (2010) 240 CLR 611.
[103] [2015] FCA 1089; (2015) 233 FCR 451 at [22].
[107] [2016] FCA 516.
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