BHY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 341
•9 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BHY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 341
File number(s): MLG 629 of 2017 Judgment of: JUDGE EGAN Date of judgment: 9 December 2021 Catchwords: MIGRATION – Applications for protection visas – adverse credibility findings made against second applicant – no failure on the part of the Tribunal to appropriately engage upon a consideration of the applicants’ claims – no failure on the part of the Tribunal to understand or correctly construe the applicants’ claims – failure by second applicant to articulate important claims at an early time after arrival in Australia – no jurisdictional error established – applications dismissed. Legislation: Migration Act 1958 (Cth) ss 5(1), 36(2)(a) and (aa), 36(2)(b) and (c), 91R, 91S and 499.
Ministerial Direction No. 56Cases cited: DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 290
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
CED15 v Minister for Immigration and Border Protection [2018] FCA 451
SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 30 November 2021 Date of hearing: 30 November 2021 Solicitor for the Applicants: Clothier Anderson & Associates Counsel for the Applicants: Dr A. McBeth Solicitor for the First Respondent: Sparke Helmore Counsel for the First Respondent: Mr J. Barrington Second Respondent: Submitting appearance save as to costs ORDERS
MLG 629 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BHY17
First Applicant
BHX17
Second Applicant
BHZ17 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
9 DECEMBER 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Amended Application for Review filed on 14 September 2021 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7,853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicants are a family unit and citizens of Pakistan who arrived in Australia on 31 December 2012 as holders of Visitor visas. The first applicant is the mother, the second applicant is the father, and the remaining four applicants are the first applicant’s and second applicant’s children.
On 29 January 2013, the applicants applied for Protection visas on the basis that the second applicant made claims to fear harm.
On 18 May 2015, a delegate of the Minister refused to grant the applicants’ visa applications, finding that key aspects of the claims by the second applicant were embellished and implausible.
On 3 June 2015, the applicants lodged an application for review of the decision of the delegate by the Administrative Appeals Tribunal (‘the Tribunal’).
On 28 February 2017, the Tribunal affirmed the decision of the delegate.
On 27 March 2017 the applicants filed an Originating Application for Review of the decision of the Tribunal.
At the hearing before the Court, the applicants relied upon an Amended Application for Review filed on 14 September 2021.
Consideration of Claims by the Tribunal
At [5] of its reasons, the Tribunal outlined the relevant criteria that needed to be met for a Protection visa to be granted under the provisions of s. 36 of the Migration Act 1958 (Cth) (‘the Act’).
At [6] – [14] of its reasons, the Tribunal set out the relevant considerations required to be taken into account when assessing Australia’s protection obligations pursuant to the provisions of ss. 36(2)(a), 91R and 91S of the Act, and the 1951 Convention relating to the Status of Refugees.
At [15] of its reasons, the Tribunal set out the relevant considerations required to be taken into account when assessing Australia’s complimentary protection obligations pursuant to the provisions of s. 36(2)(aa) of the Act.
At [19] of its reasons, the Tribunal relevantly noted that it was required to take into account policy guidelines as set out in Ministerial Direction No. 56 made pursuant to the provisions of s. 499 of the Act.
At [20] of its reasons, the Tribunal had regard to the relevant considerations when assessing the application of a member of the same family unit, pursuant to the provisions of ss. 5(1) and 36(2)(b) and (c) of the Act.
At [23] – [34] of its reasons, the Tribunal set out the claims made by the applicants as follows:
“[23] The first named applicant claimed that they had to leave Pakistan as a family due to being targeted by certain political groups and races. They were subjected to cruel treatment including being psychologically tortured and on occasions, physically assaulted. This was a regular and ongoing occurrence as the people who were causing them harm also threatened to kidnap their children and punish them until they paid a large amount of money "ie. extortion". The first named applicant claimed they were subjected to constant degrading treatment and punishment by people targeting him and his family. He claimed they were subjected to inhumane treatment due to being from a different race. Even though they tried to relocate to another area, they were still targeted and abused and the harm caused included physical, psychological and financial loss.
[24] The first named applicant claimed that they will be subjected to torture, cruel and inhumane treatment resulting in the death of one or all of his family members. An example of torture and inhumane treatment is being kidnapped and held at gunpoint or punished until a large sum of money is paid to the people who are causing harm. He claimed the political parties or groups like to use examples of people to show others what will happen to them if they do not co-operate with their orders. As they have left Pakistan, if they have to return, they will target them just to show other who do not comply with them. The first named applicant claimed that since leaving Karachi the situation has further worsened and targeted killings are occurring in other cities. He claimed those who were threatening them before they came to Australia will intensify their attempts to harm them, including police officers informing criminals and political parties of the whereabouts of people whom they are targeting because they receive large sums of money for disclosing this information and are guaranteed safety for complying with the groups. He claimed that they have already been targeted by people in Pakistan for the last few years. As they have tried to ignore or run away from them and their threats, they have become greater targets. They found them when they relocated to the other areas and if they have to return they will be informed and they will be subjected to torture within a short amount of time. They have tried to gain assistance from the police force and security agencies but they either fear the groups in Pakistan or have an association with them.
[25] The first named applicant claimed that he did not think the authorities in Pakistan can and will protect them if they go back. He claimed that authorities have their own motives. They have ties and are associated with many of the groups who are causing harm. If there is any authority that stands up to voice their opinion or protect people from another group they are targeted resulting in torture or death. There are many examples of authorities being murdered or shot due to their opinion.
[26] According to the protection visa application the second named applicant was born on [date of birth omitted] in Karachi, Sindh. She completed fourteen years education and is fluent in Urdu. The second named applicant described her occupation before coming to Australia as housewife. She departed Pakistan legally on 30 December 2012.
[27] The second named applicant claimed that she left Pakistan because of threats to her life from people who wanted money. She claimed people came to their house on repeated occasions asking for her husband and sons whereabouts and continuous degrading treatment due to being a target from political parties and their people. The second named applicant claimed that she had experienced harm in Pakistan including psychological abuse, in the absence of her husband, threats made that they would kill her and kidnap her children, her children's life in continuous danger and money taken from her house by force. She claimed that if she returns to Pakistan they will kill her and her family. They will torture and punish them for not giving them money. So many times they came to her house to find her husband and sons and demanding money. She claimed if these people see her again one hundred per cent they will kill her or kidnap her because so many times she lied to protect her husband and children.
[28] The second named applicant claimed that political parties and criminals will harm her if she returns to Pakistan as they have already abused and assaulted her family members. In the last few years people targeted her family for money and different demands. If they go back they will find her and her family in a very short time and will torture, kidnap or kill them as anything is possible. She claimed during that time they changed house but the people located them very soon because the "so-called" political parties network is very organised and completely connected with law enforcement agencies. The second named applicant claimed in the last few years whatever happened to her and her family, her husband informed the police and other law enforcement agencies, both verbally and in writing, for their protection but unfortunately there was no response or any protection for them which was very upsetting and depressing for them. As such, she does not understand how Pakistan's law enforcement agencies will protect her and her family if they go back.
[29] The third named applicant was born on [date of birth omitted] in Karachi, Sindh. She obtained a Bachelor of Commerce degree from Karachi University in 2012 and is fluent in Urdu and English. The third named applicant described her occupation before coming to Australia as student. She departed Pakistan legally on 17 January 2013.
[30] The third named applicant claimed that as her father was receiving continuously threats from different political parties, her educational career was suffering and because they also started to threaten her. Whenever she used to go to college they used to come on her way and give her threats that they would kidnap her and make her life hell. She was very depressed and could not properly focus on her studies. Due to this she started her university in private and did not take admission in regular because it was dangerous for her to go out of the house. The third named applicant claimed that she experienced harm in Pakistan. They used to threaten her a lot and say they would kidnap and kill her and that is why she was really depressed and could not give proper attention to her studies. They took her purse and cell phone on two occasions. She claimed if she goes back to Pakistan the different parties that use to extort her father will definitely kill her because they already targeted her father and her many times whilst they were in Pakistan. They will definitely not hold back if they have to go back. The third named applicant claimed that the authorities in the country will not protect her because her father submitted many applications to the police station and they did not respond to any of them. Even the police are engaged with the political parties and sacred of the political parties.
[31]According to the protection visa application, the fourth named applicant was born on [date of birth omitted] in Karachi, Sindh. He completed twelve years education and is fluent in Urdu and English. He described his occupation before coming to Australia as student. The fourth named applicant departed Pakistan legally on 30 December 2012.
[32] The fourth named applicant claimed that he left Pakistan because different political parties used to threaten his father and they also threatened him. When he used to be in his father's showroom they assaulted him several times and threatened him by saying they would kidnap or kill him if he or his father did not give them money. He claimed whenever he used to go to the showroom they used to come and misbehave with him and have assaulted him several times in front of all the shopkeepers. He also claimed that whenever he used to leave his home for study or any other purpose they used to misbehave with him and due to this he was in big stress and could not focus on his studies or live his life normally.
[33] The fourth named applicant claimed that as these people have identified him and he and his father cannot give them money, they will definitely kidnap or kill him because they will do anything for money. He claimed the people who were extorting and continuously threatening him, his father and family will harm him if he returns to Pakistan because they have targeted him and his family several times so they will definitely target them again. They will not leave them alone as they have tried to hide themselves from them several times but they can find them even if they move to a different city. He did not think the authorities will protect them because before coming to Australia he and his father had tried their level best by giving continuous applications to the police and other law enforcement agencies but their attitude was "non-serious".
[34] The fifth and sixth named applicants have not made protection claims of their own, relying on their membership of the applicants' family unit.”
[dates of birth omitted]
At [35] of its reasons, the Tribunal set out, and had regard to, the second applicant’s statutory declaration which was submitted to the Department as part of the Protection visa applications. The statement was that of the second applicant, although it had been erroneously recorded in [35] of the reasons as being the declaration of the first applicant. In the Originating Application filed on behalf of the applicants, the mother is recorded as being the first applicant and the father the second applicant. Throughout the reasons of the Tribunal, the Tribunal treated the second applicant in these proceedings as being the first applicant for the purpose of the review application before it. To the extent that the Tribunal made adverse credibility findings about the ‘first applicant’, the Court has treated such findings as being findings made against the second applicant to these proceedings.
Grounds of Review
The grounds of review in the Amended Application for Review filed on 14 September 2021 were as follows:
“Grounds of application
1. The Tribunal failed to give the applicants a meaningful opportunity to respond to an issue arising in the review, namely the proposition that the reports made by the applicant to police were fraudulent.
Particulars
(a) The Tribunal had before it four reports made by the applicants to the police regarding the incidents that were central to their claims for protection.
(b) The Tribunal implicitly found at [70] that the documents were fraudulent.
(c) The issue of whether the documents were fraudulent was an issue arising in the review.
(d)The Tribunal failed to put the proposition that the documents were fraudulent to the applicants for comments and to provide a meaningful opportunity for them to give evidence and present arguments in relation to that issue.
2. The Tribunal misunderstood or misconstrued the applicants’ claims, or alternatively, the Tribunal’s decision was based on irrational reasoning, namely the Tribunal’s misunderstanding of the evidence regarding the perceived political opposition of the first applicant to the MQM.
Particulars
(a) Each of the applicants consistently gave evidence that the applicant husband/father had attempted to form an association of traders to resist the extortion by the MQM and had been imputed with an anti-MQM political opinion on that basis.
(b) The Tribunal misconstrued the applicants’ claims to have an imputed political opinion on that basis and erroneously found the claims to be inconsistent with a lack of evidence to have been involved in electoral politics.”
Ground 1 was a claim that the Tribunal failed to give the applicants a meaningful opportunity to respond to the proposition that the reports made by the applicant to the police were fraudulent. The Tribunal, at [69] – [73] of its reasons, made adverse findings about the second applicant’s credibility, and as to deficiencies and inconsistencies in his evidence. It found as follows:
“[69] The Tribunal therefore does not accept that the local MQM came to the first named applicant's shop in the afternoon and assaulted and slapped him after they learnt of this alleged welfare association. The Tribunal notes the second named applicant made no mention in the hearing of the first named applicant being involved in any incident after starting the welfare association, instead claiming that it was the fourth and fifth applicant who experienced problems. The second named applicant claimed that the alleged incident at the first named applicant's shop in September 2012 when the fourth and fifth named applicants were assaulted was a reaction to the first named applicant's formation of the welfare association and when specifically asked if anything happened to the first named applicant because he formed this group, she explained because that attack was on their children, it was an attack on her and the first named applicant. However, the Tribunal notes according to the first named applicant's detailed statutory declaration, the alleged incidents in which the fourth and fifth named applicants were assaulted occurred before he allegedly formed the welfare association. Further, the first named applicant claimed it was he who was threatened and assaulted after they became aware of his activities forming this association. Yet, the second named applicant made no mention of any such incident involving the first named applicant.
[70] The Tribunal does not accept that the first named applicant made any applications to the police or to authorities regarding the extortion and harassment that he and his family were allegedly being subjected to. The Tribunal has taken into consideration the letters written by the first named applicant dated 25 January 2012, 1 April 2012, 8 July 2012 and 26 September 2012 which were submitted by the applicants. While these letters do have the stamp of a police station on it, suggesting that they had been received by the police, the Tribunal places little weight on them in light of the independent information cited in the delegate's decision regarding document fraud being endemic in Pakistan, suggesting the ease in which such stamps could be procured.
[71] As the Tribunal does not accept the applicants claims regarding the extortion and subsequent threats, harassment and abuse are credible, it does not accept that after arriving in Australia the first named applicant received SMS messages from people he believed to be the MQM, every two or three days for a period of two months. While the Tribunal notes these threatening SMS messages were shown to the delegate, the Tribunal shares the delegate's concern that there is no way to establish the authenticity of these messages, including who they were sent by. Nor does the Tribunal accept that the applicant children have been advised by their friends via Facebook that some guys came and asked where they were. The Tribunal notes the first named applicant made no mention of such enquiries being made of his children's friends or neighbours, despite the second named applicant claiming the children informed both of them of these alleged enquiries. The Tribunal also found the second named applicant's evidence as to when she became aware of these alleged enquiries vague and limited in detail, in that she could not explain when her children learnt of these enquiries being made from friends via Facebook or when she became aware of this. The fourth named applicant claimed it was 8-9 months ago that friends were being asked about him and his family's whereabouts. The Tribunal finds it implausible that several years after the applicants left Pakistan these people would be making enquiries about their whereabouts as claimed.
[72] The Tribunal has taken into account the first named applicant's health issues. The Tribunal notes the medical evidence submitted regarding the treatment for Hepatitis C the first named applicant has received between 2014 and 2016 and the letter from the first named applicant's GP dated 3 October 2016 which also indicates that he suffers generalised anxiety and panic disorder and Beta Thalassemia minor. In the adviser's post-hearing submission it was contended that these health issues should be taken into account when assessing the first named applicant's inability to remember specifics about his experiences in Pakistan. The Tribunal notes that the first named applicant was lucid and able to understand and answer the Tribunal's questions during the course of two hearings and is satisfied he was abie to effectively participate in the hearing. The Tribunal does not accept that the first named applicant's medical issues impacted on his ability to give evidence in the hearing or his ability to remember details of his past experiences in Pakistan, given his detailed evidence during the two hearings. Nor does the Tribunal accept that these health issues affected the first named applicant's interview with the delegate on 29 April 2013 or the statutory declaration attached to his protection visa application based on his ability to provide a degree of detail about his alleged experiences in Pakistan, which the Tribunal finds is not consistent with the claims regarding the first named applicant's memory difficulties due to the high dosage of medication he was taking at the time. The Tribunal also notes nothing was raised in any of the evidence provided by the applicant, including to the Tribunal, to suggest that the first named applicant's health concerns were a basis for him facing serious or significant harm on return to Pakistan.
[73] The Tribunal notes that a number of the deficiencies in the evidence as discussed above are inconsistencies between the applicants, which is not explained by the first named applicant's medical issues. Nor does the Tribunal accept, for the reasons discussed above, the claims in the post hearing submission, that the inability of the applicants to remember specifics about their experiences is a result of the trauma they allegedly suffered in Pakistan from the extortion, the stress involved in the protection visa application process including being interviewed at several different stages, often with poor representation or the normal extent of memory loss. The Tribunal also does not accept the deficiencies highlighted are the result of other members of the family suffering mental health issues, as asserted by the adviser, given the lack of evidence on this point or due to the sixth named applicant being hospitalised soon after the applicants arrival in Australia, according to their evidence in the hearing, and as opposed to the agents submission that this occurred around the time of the Department interview.”
At [75] of its reasons, the Tribunal recorded that it had had regard to country information which suggested that there was an improved security situation in Karachi since 2013.
As was found by the Tribunal at [70] of its reasons, document fraud in Pakistan was endemic. That finding was significant, bearing in mind that the alleged reporting of incidents to police by the second applicant was the subject of purported evidence of the making of such reports by the production of alleged police stamped letters of complaint. In the light of the production of such evidence, and its consideration by the Tribunal, it could not be suggested that the Tribunal was not alive to the claim that the applicants were seeking to substantiate the claims of harassment by reason of the production of such alleged complaint letters stamped by the police. Having regard to the incidence of document fraud in Pakistan, and further having regard to the Tribunal’s adverse findings as to the second applicant’s credibility and inconsistency of claims, it was open for the Tribunal to make the finding that it was not satisfied that such stamped documents were genuine.
Unlike the factual scenario in DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 290, where the applicants in that matter had not seen the relevant documentation before it was sent as part of the Tribunal’s file to the Federal Circuit Court for the purpose of the hearing of a judicial review application by such court, the applicants in the present matter had themselves produced the documents for consideration by the Tribunal. In those circumstances, nothing prevented the applicants from making whatever submission or argument they wished to make as to the veracity and effect of such documents. Whether the Tribunal accepted or rejected such submissions or arguments, in such circumstances, was a matter for the Tribunal, having regard to the contents of the documents, as well as all of the other evidence which was before it. In the present matter, the Tribunal assessed the documents and rejected them as being fabricated. The Court finds that, in such circumstances, it could not be said that no other reasonable Tribunal member could not have arrived at the same decision as did the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131]What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Ground 1 is without merit and is dismissed.
As to ground 2 of the Amended Application for Review, such was a claim that the Tribunal had misunderstood or misconstrued the applicant’s claims, or alternatively, that the Tribunal’s decision was irrational. There is no merit to such claim. First, the Tribunal’s consideration of events relating to allegations that the second applicant was targeted for extortion dating back to 2008, at the time of an alleged election, was undertaken in the context of no claim about such extortion incident having ever been raised until referred to in the submissions made on behalf of the applicants dated 16 September 2016. At [42] of its reasons, the Tribunal found it implausible that the applicants would not have raised such incident at an earlier time in the visa application process had the alleged extortion in fact occurred. The conclusions reached by the Tribunal were open on the evidence before it. As Thawley J said at [21] - [24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:
“[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:
69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.
70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.
[22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.
[23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox.
[24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”
At [43] – [48] inclusive of its reasons, the Tribunal set out the basis for its finding at [48] that the second applicant was not the subject of any extortion by either the MQM, or by any number of other extremist or terrorist groups. The Tribunal found that from 2008, the second applicant was not required to give money or make donations to MQM, or any other group, or that he otherwise was required to provide electrical generators or other accessories, to be sourced from his electrical business, for use during such groups’ meetings.
As to the assertion that the Tribunal had failed to appreciate the second applicant’s claims that he would be imputed as having an anti-MQM political position, at [46] of its reasons, the Tribunal specifically considered the evidence of the third named applicant. The Tribunal rejected her evidence that the second applicant openly opposed MQM, finding instead that the second applicant’s own evidence was that he was not involved in politics, was not a member of any political party, and did not engage in any political activities. Again, the Tribunal was entitled to reject such evidence as an embellishment designed to further the prospects of the visa claims. The Tribunal was also entitled to find, as it did at [47] of its reasons, that it was far-fetched for the second applicant to have claimed that at least six (6) different groups had been seeking to extort money from the second applicant every two – five months over more than a 10 year period since 2002.
The Tribunal rejected the claim that the second applicant had spoken openly against the MQM on the basis that such claim was inconsistent with other aspects of the second applicant’s evidence. The second applicant’s own evidence was that he did what he could to avoid the MQM. [1] In such circumstances, it was not illogical for the Tribunal to have found as it did, the applicants having failed to meet the high bar to establish such claim.
[1] See Transcript (T) p. 26.9-11 and T p. 59.19-25 being annexure SV-1 to Affidavit of Ms Verma filed on
In SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210, when discussing whether jurisdictional error had been demonstrated where some factual findings had been made which were said to be either irrational or illogical, Wigney J, at [52] - [56] and [61], said:
“[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
[53] The Minister submitted that a decision of the Tribunal can only be overturned on the basis of illogicality or irrationality if it is shown that the end result is one which no logical or rational decision-maker could arrive at. The submission appeared to be that, where a decision is challenged on the basis of illogicality or irrationality, the reviewing court should decide for itself whether the end result was irrational on the materials that were before the decision-maker, as opposed to whether the decision-maker’s reasoning was illogical or irrational. This was said to flow from the judgment of Crennan and Bell JJ in SZMDS.
[54] The Minister’s submission in that regard is rejected. The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
[56] An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
…
[61] In all the circumstances, it was not at all illogical, irrational or unreasonable for the Tribunal to have regard to the fact that Mr B said nothing in the biodata interview concerning the Tamil Tigers in assessing the credibility of his claims as they were later developed.”
The Tribunal did not otherwise misunderstand or misconstrue the second applicant’s claims. Rather, the Tribunal did not believe them.
The decision of the Tribunal could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
There was no merit to such claim and accordingly Ground 2 is dismissed.
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 9 December 2021
SCHEDULE OF PARTIES
MLG 629 of 2017 Applicants
Fourth Applicant:
BIA17
Fifth Applicant:
BIB17
Sixth Applicant:
BIC17
14 September 2021.
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