BLM24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 509
•11 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BLM24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 509
File number: PEG 102 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 11 April 2025 Catchwords: MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal failed to give sufficient weight to the applicant’s circumstances – whether the Tribunal engaged in a process of reasoning that was illogical or irrational – no jurisdictional error established – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 36, 423A, 476, 477
Cases cited: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 7 April 2025 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 102 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BLM24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
11 APRIL 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
The applicant is a citizen of China who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on 5 March 2024. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant’s matter was before it for review.
The applicant raises two grounds in her application, which allege that the Tribunal failed to give sufficient weight to her circumstances in China and that the Tribunal engaged in a process of reasoning that was illogical or irrational.
For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error. The application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
On 15 March 2018 the applicant applied for a protection visa. The applicant’s claims for protection were based on past harm she had experienced at the hands of her ex-boyfriend and her fear that she would face serious harm from him if she returned to China.
On 30 June 2022 a delegate of the Minister refused to grant the applicant a protection visa. The applicant then applied to the Tribunal on 20 July 2022 for merits review of the delegate’s decision.
The applicant attended a hearing before the Tribunal on 12 February 2024 to give evidence and present arguments in relation to the issues arising in the review.
On 5 March 2024 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF THE TRIBUNAL DECISION
In assessing the applicant’s credibility, the Tribunal accepted parts of the applicant’s claims as credible and dismissed minor or explained inconsistencies. However, the Tribunal also rejected aspects of the applicant’s claims and found that the applicant had exaggerated some of her claims.
Claims relating to the applicant’s fear of persecution from her ex-boyfriend
The Tribunal accepted the applicant’s relationship with her ex-boyfriend was characterised by abuse and exploitation and accepted that she suffered mental and physical mistreatment. The Tribunal accepted that the applicant remained in the abusive relationship and did not have access to effective help to extricate herself from the relationship until travelling to Japan and ultimately Australia. The Tribunal also accepted that the applicant sought assistance from her friends to avoid her ex-boyfriend.
Considering the evidence and circumstances as a whole, the Tribunal concluded that the applicant did not have a real chance of serious harm amounting to persecution, despite having experienced mistreatment in the past. In reaching this conclusion, the Tribunal particularly noted the following circumstances and findings:
(a)The Tribunal did not accept the ex-boyfriend was able to exert the level of control over the applicant as she appeared to suggest, noting that the applicant was able to leave the relationship when she travelled to Japan and was not forced back into it when she returned to China. The Tribunal noted the applicant’s evidence was that she was able to leave the ex-boyfriend and return to China after travelling to Malaysia with him, despite her claims that her ex-boyfriend was influential and had an influential family in his village/city.
(b)The applicant did not seek protection when she was in Japan and the Tribunal was not persuaded by the applicant’s explanation that Japan was ‘too close’ to China. The Tribunal found that the applicant’s failure to seek protection in Japan seriously undermined her claim to face a real chance of future serious harm if she returns to China.
(c)The applicant provided no credible evidence to suggest her ex-boyfriend had made any attempt to contact her since 2017, or that he had a continuing adverse interest in her.
(d)There was nothing in the evidence to support the applicant’s assertion that her ex-boyfriend’s relatives may force her to resume her relationship, or how they could do so now that the applicant is married and with a child.
(e)The Tribunal was not persuaded on the evidence before it of the applicant’s claim that she knows her ex-boyfriend’s ‘secrets’ and that he will harm her to silence her reporting to the authorities. The Tribunal considered that the applicant’s claim that she reported the ex-boyfriend’s corruption to the police in China, who did not act upon it, to be vague, lacking in detail and not credible.
(f)The applicant’s personal circumstances are very different to what they were when she departed China in 2017 and she would be returning to China with her husband and child. The Tribunal found no evidence to suggest the applicant’s husband and child would not be entitled to a visa or right to enter and reside in China if they were to accompany the applicant to China. The Tribunal also found that the presence of a husband and child would be a factor in reducing the risk of harm at the hands of the applicant’s ex-boyfriend.
(g)The Tribunal considered that the applicant’s assertion that she faced a real chance of becoming a ‘chained woman’ was exaggerated and that there was not a real chance of her facing such harm. The Tribunal acknowledged reports of abuse and trafficking in China and, in particular, acknowledged the reports relating to a ‘chained woman’ in Feng County. However, the Tribunal did not accept that the applicant faced a real chance of similar mistreatment from her ex-boyfriend or anyone else. The Tribunal considered the government response to the reporting relating to the ‘chained woman’ was not one of acquiescence and referred to country information regarding measures by the Chinese authorities to combat people trafficking and human slavery.
The Tribunal accepted that the applicant’s family disapproved of her relationship with the ex-boyfriend, but noted that there was no claim made by the applicant that she faces a real chance of harm at the hands of her family because of her marriage to her Malaysian husband and no such claim arose on the facts of the case.
The Tribunal found there was no credible evidence to suggest there was a real chance the applicant would be forced back into the sex-industry by her ex-boyfriend or anyone else now or in the reasonably foreseeable future if she were returned to China.
The Tribunal considered the applicant’s claim that her ex-boyfriend took her Resident Identity Card (RIC) and that she will not be able to travel or relocate within China, and her son will be denied schooling, without an RIC. The Tribunal found nothing in the country information before it to suggest obtaining a replacement RIC would be anything more than an administrative procedure. The Tribunal accepted the applicant would have to approach the relevant local authority in her village to begin the process, but did not accept that the applicant would be refused or have any difficulties obtaining the relevant documents for a replacement RIC. The Tribunal found that, with a replacement RIC, the applicant would be able to travel and relocate within China in accordance with the laws of that country, with no indication her ex-boyfriend had any intention to pursue her to other parts of China.
Claim relating to an outstanding debt
The Tribunal considered a claim advanced by the applicant at the hearing to fear harm from a creditor due to an outstanding debt but found the claim and the evidence in relation to it to be unconvincing. The Tribunal was not satisfied that the applicant had a reasonable explanation for not raising the claim before the primary decision was made and drew an inference unfavourable to the credibility of the claim as required by s 423A of the Migration Act. The Tribunal accepted that the applicant was repaying a loan, but did not accept that the applicant had been threatened with harm by the creditor, or that her friend’s son had been attacked as she claimed. The Tribunal did not accept that the applicant faced a real chance of persecution at the hands of her creditor now or in the reasonably foreseeable future if she returns to China.
The Tribunal’s conclusions
Having regard to its factual findings, the Tribunal found that the applicant did not meet the refugee criterion in s 36(2)(a) of the Migration Act. Based on the same findings of fact, the Tribunal also found that the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed an application for judicial review on 27 March 2024. The application was made within 35 days of the Tribunal decision as required by s 477(1) of the Migration Act.
The applicant raises two grounds in her application:
1. The Tribunal failed to give sufficient weight to the Applicant’s circumstances in China. The Tribunal failed to engage in an active intellectual process of considering the Applicant's circumstances in China.
2. The Tribunal made a jurisdictional error by engaging in a process of reasoning that was illogical, irrational, and not based upon findings of fact supported by logical grounds. Since the Tribunal failed to give sufficient weight to the Applicant’s circumstances in China, the decision made by the Tribunal was so unreasonable that no reasonable person in the position of the Tribunal would have made it. It is a decision that was illogical, irrational and lacking a basis in inferences of fact supported on logical grounds.
Pursuant to an Order made by a Registrar of this Court on 27 May 2024, the applicant was to file and serve at least 28 days before the hearing written submissions, any amended application with proper particulars of the grounds of application and any additional evidence upon which she sought to rely. The applicant did not file any documents in accordance with this Order. The Minister filed written submissions more than 14 days before the hearing as required by the Registrar’s Order.
The evidence before the Court comprises:
(a)an affidavit filed by the applicant with the judicial review application, annexing a copy of the Tribunal decision;
(b)the court book filed on behalf of the Minister on 29 May 2024; and
(c)an affidavit of service of Aatika Ismailjee made on 2 April 2025 and filed on behalf of the Minister.
CONSIDERATION OF THE GROUNDS OF APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if she establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
The applicant’s submissions at the hearing
When invited to make oral submissions at the hearing, the applicant submitted that she feels the Minister does not understand her situation in China and she hopes that the Court will try to understand why she cannot return to China. The applicant submitted that she has lived here for a long time and it would be very hard if they had to leave Australia now.
The applicant was specifically referred to each of her two grounds and invited to make submissions addressing those grounds. However, the applicant indicated that she had nothing to add to her two grounds. The applicant was also invited to make any other submissions about why she believes there is a jurisdictional error in the Tribunal decision and did not have anything further that she wished to say.
The applicant’s submissions at the hearing do not assert jurisdictional error in the Tribunal decision and cannot give rise to jurisdictional error in the Tribunal decision. As explained to the applicant at the hearing, the Court cannot consider for itself whether she meets the criteria for a protection visa. I accept the Minister’s submissions, made in the context of grounds 1 and 2 below and in response to the applicant’s oral submissions at the hearing, that the Tribunal considered the evidence and made findings about the applicant’s circumstances in China in reaching its decision.
The applicant’s oral submissions at the hearing do not establish jurisdictional error.
Ground 1
The parties’ submissions
By ground 1, the applicant asserts that the Tribunal failed to give sufficient weight to her circumstances in China and failed to engage in an active intellectual process of considering her circumstances in China. The applicant did not advance any submissions in support of this ground.
In response to this ground, the Minister submitted that the weight to be given to the applicant’s evidence was a matter for the Tribunal: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 (Tran) at [5]-[7]. The Minister further submitted that, in any event, the Tribunal in this case did not make any findings as to what weight was to be placed on the applicant’s evidence. Rather, the Tribunal accepted or rejected the evidence as it was presented. The Minister submitted that the Tribunal’s reasons expressly set out the claims the applicant raised in her visa application, the claims and evidence she raised at or provided after the hearing, and its assessment of those claims. The Tribunal’s reasons demonstrate that it undertook an active and intellectual assessment of whether the applicant’s circumstances satisfied the requirements for the visa.
Relevant principles
In relation to the weight to be given to evidence before a Tribunal, in Tran RD Nicholson J (with whom Kiefel and Downes JJ agreed) said at [5]:
There was no error in the primary judge’s conclusion that the weight to be accorded to factors to be considered by the Tribunal was a matter for it. It was for the Tribunal to identify such material as it found relevant to its reasoning and to give it appropriate weight.
A similar view was expressed by French J in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27], where his Honour said that the ‘Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances’.
A number of authorities have addressed that the obligation of the Tribunal to consider a claim or representation must involve an active intellectual process. One such authority is Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 (Carrascalao), in which the Full Court considered a number of authorities that ‘endorsed the principle that when a decision-maker is required by statute to consider a claim or other mandatory criteria, the decision-maker must engage in an active intellectual process directed at that claim or criteria’: Carrascalao at [45].
This should be read in conjunction with the High Court’s judgment in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17, in which the High Court cautioned at [26] that labels such as ‘active intellectual process’ must be understood in their proper context. The Court explained at [24]-[25] (footnotes omitted):
24.Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25.It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
Consideration of the Tribunal’s reasoning in the present case
I accept the Minister’s submission that the Tribunal in its reasons expressly set out the claims the applicant raised in her visa application, the detail of the claims and the evidence given by the applicant at or after the hearing and its assessment of the applicant’s claims and evidence. Having reviewed the written documents provided by the applicant to the Department and the Tribunal, the summary of the applicant’s evidence at the hearing, as set out in the Tribunal reasons, and the Tribunal’s consideration of the claims and evidence, I am satisfied that the Tribunal has identified and understood the claims advanced by the applicant. The Tribunal evaluated each of those claims and made findings that accepted or rejected each aspect of the applicant’s evidence relevant to whether she met the criteria for a protection visa.
There is nothing in the Tribunal’s reasons to suggest that it did not consider the applicant’s circumstances in China in an active intellectual manner and the applicant has not established that any jurisdictional error may arise based on the Tribunal’s attribution of weight to evidence.
Ground 1 is not established.
Ground 2
The parties’ submissions
By ground 2, the applicant asserts that the Tribunal made a jurisdictional error by engaging in a process of reasoning that was illogical, irrational and not based upon findings of fact supported by logical grounds. The applicant further asserts that the Tribunal acted unreasonably by failing to give sufficient weight to her circumstances in China. The applicant did not advance any submissions in support of this ground.
In response to this ground, the Minister submitted that it is unclear how the Tribunal’s conclusions can be regarded as not being supported by logical grounds and therefore unreasonable. The Tribunal’s conclusions that the applicant did not face a real chance of serious and significant harm from her ex-boyfriend were plainly open to it for the reasons the Tribunal gave. The Tribunal also took into account country information including that her claim to fear being a ‘chained woman’ was exaggerated. The Tribunal’s finding in relation to the applicant’s claim regarding the money lender was reached having regard to s 423A of the Migration Act, which required the Tribunal to draw an inference unfavourable to the credibility of the claim, in circumstances where it was not satisfied that the applicant had a reasonable explanation for failing to raise it before the delegate. The Minister submitted that there was nothing in the Tribunal’s reasons to demonstrate any illogicality, irrationality or unreasonableness in reaching the conclusions that it did on the claims and evidence before it: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [131], [135].
Relevant principles
In SZMDS at [131] and [135], Crennan and Bell JJ said in relation to illogicality and irrationality:
131.… 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.… 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…
In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2, the Full Court summarised principles relating to illogicality, irrationality and unreasonableness in fact-finding, including adverse credibility findings at [30], where the Court said:
(1)While findings as to credit are generally matters for the administrative decision-maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) that:
135.… A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added.)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (in a passage approved in CQG15 at [60]) that:
56An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny …
(Citations omitted.)
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
Consideration of the Tribunal’s reasoning in the present case
As the summary of the Tribunal’s reasons, set out above, demonstrates, the Tribunal carefully considered the claims advanced by the applicant and her evidence given in support of those claims. The Tribunal also had regard to country information, including, but not limited to, information provided by the applicant.
The Tribunal made findings that were open to a logical and rational decision-maker based on the evidence before it. This was not a matter where, for example, only one conclusion was open and the Tribunal did not make that decision. I am satisfied that there is a clear and logical connection between the evidence before the Tribunal and the conclusion and inferences made by the Tribunal, including in relation to its credibility findings. There is nothing unreasonable about the weight that the Tribunal gave to the evidence before it.
Further, the applicant has not asserted or established that there is any error in the Tribunal’s reliance on s 423A of the Migration Act to draw an inference unfavourable to the credibility of her claim to fear harm from a creditor in circumstances where the Tribunal was not satisfied that the applicant had a reasonable explanation for not presenting the claim or evidence before the primary decision was made.
Ground 2 is not established.
CONCLUSION
In circumstances where the applicant has not established that the Tribunal made a jurisdictional error, her application for judicial review must be dismissed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 11 April 2025
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