BRU20 v Minister for Immigration
[2020] FCCA 930
•24 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRU20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 930 |
| Catchwords: MIGRATION – Application for Partner Visa – whether or not applicant had deliberately manipulated his circumstances so as to give him an unfair advantage on the question as to whether compelling reasons existed for the waiver by the Minister of the cl. 3001 criteria – finding that there were no compelling reasons justifying waiver of criteria – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 |
| Applicant: | BRU20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2571 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 21 April 2020 |
| Date of Last Submission: | 21 April 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 24 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Forsaith |
| Solicitors for the Applicant: | Zouki Lawyers |
| Counsel for the Respondents: | Mr Goodwin |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.’
The amended application for review filed on 21 April 2020 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
MLG 2571 of 2018
| BRU20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Jordan who arrived in Australia for the first time on a Subclass 572 Student Visa in December 2007. He lawfully departed Australia in December 2008.
In March 2010, the applicant arrived in Australia, again on a Subclass 572 Student Visa. In July 2010, the applicant applied for a protection visa. That application was refused by a delegate of the Minister in May 2011. That decision was later affirmed by the Refugee Review Tribunal (RRT) on 27 October 2011. The RRT assessed the applicant’s claims by reference to the criterion in s. 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’) which, at the time, referred to the UN Refugee’s Convention as amended by the Refugee’s Protocol.
The applicant’s student visa expired on 30 August 2012, following which he was granted a Subclass 050 Bridging Visa (BVE) which permitted him to live and work in the community. The applicant subsequently held a number of BVE’s.
On 23 September 2012, the applicant unsuccessfully sought Ministerial intervention in respect of his protection visa refusal.
On 25 January 2013, the applicant lodged a second application for a protection visa. The filing of such application was not invalid because the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 had held that s. 48A of the Act did not operate to invalidate the filing of a second protection visa application in circumstances where the previous application had not been assessed against complimentary protection provisions. Section 36(2)(aa) of the Act had commenced operation on 24 March 2012 such that there was, after such date, a mechanism for the assessment of complimentary protection claims.
On 29 September 2014, a delegate of the Minister refused to grant a protection visa. That decision was later affirmed by the Administrative Appeals Tribunal on 15 February 2016.
The applicant had earlier met his sponsor, an Australian citizen, on 25 July 2015. The applicant and his sponsor were married in April 2016.
On 15 April 2016, shortly after the applicant’s marriage to his sponsor, the applicant made a valid application for a Partner – Temporary (Class UK) (Subclass 820) Visa, together with a Partner – Residence (Class BS) (Subclass 801) Visa.
On 22 April 2016, the Department wrote to the applicant and advised him that because he did not hold a substantive visa at the time that he lodged his partner visa application, he was required to satisfy additional Schedule 3 criteria. The applicant was advised that if he did not meet the said criteria, the criteria could be waived if there were compelling reasons for not applying them. The applicant and his sponsor/wife were invited to put forward any claims that they wished the Department to consider in that regard.
On 12 July 2016, a delegate of the Minister found that there were no compelling reasons for waiver of the Schedule 3 criteria, and the applications for the visas were therefore refused.
On 28 July 2016, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate. On 22 June 2018, the applicant’s agent lodged a written submission in support of the application for review of the delegate’s decision, together with supporting material which included a number of domestic invoices, photographs, text messages, and other documents submitted as being supportive of the proposition that the relationship between the applicant and his sponsor was genuine. [1]
[1] Court Book (CB) pp. 231 – 299 inclusive.
Following the hearing before the Tribunal, the applicant’s representative lodged a further submission. [2]
[2] CB pp. 325 – 326.
On 23 July 2018, the Tribunal affirmed the delegate’s decision.
On 27 August 2018, the applicant filed an Originating Application for review of the Tribunal’s decision.
At the hearing before this Court, the applicant was, without objection on the part of the First Respondent, granted leave to file and serve an Amended Application in the form of the draft Amended Application annexed to the applicant’s written outline of submissions filed on 9 April 2020. There was one (1) ground of review which was as follows:
Grounds of application
1. The Second Respondent’s decision to affirm a decision of a delegate of the First Respondent to refuse to grant the Applicant a Partner (Temporary) (Class UK) (subclass 820) visa (the visa) was affected by jurisdictional error arising from an illogical and irrational mode of reasoning in relation to the state of satisfaction referred to in s 65 of the Migration Act 1958 (Cth) (the Act).
PARTICULARS
i. The Applicant acknowledged that he did not satisfy the Schedule 3 criteria referred to in clause 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth), but claimed that there were ‘compelling reasons for not applying those criteria’. The Tribunal was required to consider this claim in determining whether it was satisfied that the criteria for granting the visa were satisfied, per s 65 of the Act.
ii. The Tribunal’s consideration of this claim was affected by an illogical or irrational view that the Applicant had, or may have, ‘manipulated his circumstances in an attempt to create compelling reasons as to why the Schedule 3 criteria should be waived’.
iii. But for this illogical or irrational view, the Tribunal may have reached a different conclusion on the question of whether or not there were ‘compelling reasons’ for not applying the Schedule 3 criteria.
By cl. 820.211(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), the applicant was required to meet the requirements of subclause (2), which in turn required the applicant to meet the criteria as provided for in subclause (d) thereof, which criteria were as follows:
820.211
…
(2) An applicant meets the requirements of this subclause if:
…
(d) in the case of an applicant who is not the holder of a substantive visa—either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
(emphasis added)It was therefore necessary for the applicant to meet the criteria as set out in cl. 3001 of Schedule 3 to the Regulations. Clause 3001 relevantly provided as follows:
3001
(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or
b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa—the day when the applicant last became an illegal entrant; or
(c) if the applicant:
i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
(iv) the day when the applicant last entered Australia unlawfully; or
(d) if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:
(i) the day when that last substantive visa ceased to be in effect; and
(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.
Because the applicant had not held a substantive visa after the expiration of his student visa in 2011, [3] the relevant visa application made by the applicant was so made more than twenty-eight (28) days after “the relevant day”. The applicant therefore did not meet the cl. 3001 criteria. In those circumstances, the visa application could only be approved if the Minister was satisfied that there were compelling reasons for not applying the cl. 3001 criteria.
[3] Clause 3001(1) of Schedule 3 to the Regulations.
Ground 1 of the Amended Application for Review
Ground 1 is of two parts. As to the first part, it was asserted that the decision of the Tribunal was illogical and irrational because the Tribunal found that “the applicant had, or may have, “manipulated his circumstances in an attempt to create compelling reasons as to why the Schedule 3 criteria should be waived.” ” It was submitted on behalf of the applicant that the Tribunal had found that there was evidence to suggest that the applicant had manipulated his circumstances to seek to give rise to compelling reasons for waiver of the cl. 3001 criteria.
At [16] – [17] of its reasons, the Tribunal referred to guidelines under Procedures Advice Manual (PAM3). The applicant referred to the policy guidelines as set out in PAM3 by which it was stressed that the provisions of cl. 3001 were not intended to give, or be perceived to give, an unfair advantage to persons who deliberately manipulated their circumstances to give rise to compelling reasons.
At [8] – [15] of its reasons, the Tribunal set out with clarity the matters which were required to be taken into account when considering visa applications of the kind made by the applicant. The Tribunal referred to the relevant cl. 820.211(2)(d) of Schedule 2 criteria, and to the criteria as provided for in cl. 3001 of Schedule 3. It also referred to decisions of the Federal Court of Australia which considered a number of circumstances which constituted compelling reasons for waiver of the Schedule 3 criteria. [4]
[4] MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510 at [10]; Babicci v
MIMIA (2005) 141 FCR 285 at [24]; Wensila v Minister for Immigration and Border Protection
(2016) 241 FCR 121.
At [18], the Tribunal found that it was appropriate to consider the applicant’s migration background and the actions of the applicant because, “on its face, the evidence suggests that he has failed to comply with his previous visa conditions and manipulated his circumstances to seek to give rise to compelling reasons.”
At [19] – [29] inclusive of its reasons, the Tribunal chronicled the applicant’s migration history.
At [21] of its reasons, the Tribunal noted that for the period between 25 November 2011 – 31 August 2012 (a period of approximately nine (9) months) the applicant had unlawfully over-stayed in Australia, in that he did not then hold any valid visa.
At [22] of its reasons, the Tribunal recorded that the applicant had declined interviews with the delegate in respect of his second protection visa application, and that at the hearing of both of his protection visa hearings (before the RRT and the Tribunal) the visa applicant had declined the opportunity to attend such hearings. It was recorded that when the Tribunal Member asked the applicant why he had not attended his hearing before the RRT, the applicant had said that his then representative (the Asylum Seeker Resource Centre) did not tell him either that his RRT hearing was being conducted, or that he had become an unlawful entrant after the first RRT decision affirming the delegate’s decision had been made. The applicant said that he had only learned from his representative some two (2) – three (3) weeks before the latest Tribunal hearing that he was unlawfully in Australia for the said nine (9) month period.
At [24] of its reasons, it was noted that in the RRT reasons for decision in relation to the applicant’s first protection visa application, it was stated that after the RRT had received numerous requests to reschedule the hearing date from the applicant’s representative, the RRT had received a submission from the applicant’s representative stating that the visa applicant had instructed them to request that a decision be made by the RRT based upon the papers then before it.
At [25] of its reasons, it was recorded by the Tribunal that on the occasion of the second protection visa application hearing before the first Tribunal, the applicant’s representative had written to the Tribunal advising it that they had been instructed to request that a decision be made on the papers then before the Tribunal.
At [26] of its reasons, the Tribunal recorded that at the hearing before it, the applicant had said that his representative at the time of the second protection visa application hearing had contacted him before such hearing and told him not to attend the hearing.
At [27] of its reasons, the Tribunal found that it was unlikely that the applicant had been truthful in his evidence in relation to his failure to attend his previous protection visa hearings. It was noted that in both sets of Tribunal reasons it was clearly stated that the representative had received instructions from the visa applicant that he would not attend the hearings, and that such representatives had been requested to ask the tribunals to conduct the hearings on the basis of the documentation then before them. That contrasted with the applicant’s statement to the latest Tribunal that he had not been told about the first hearing, and that his representative had told him not to attend the second hearing. It was recorded by the Tribunal that:
“Given the importance of these hearings to the visa applicant’s migration status I consider it highly unlikely that any representative would have adopted these approaches to a client’s application for review.”
At [28] of its reasons, the Tribunal also found that it was highly unlikely that the visa applicant would have been unaware of his unlawful status following the decision of the RRT in respect of the first protection visa application until two (2) – three (3) weeks before the Tribunal decision. The Tribunal considered that the applicant would have been made aware of his unlawful status at least at the time that the applicant applied to the Department for a bridging visa – such bridging visa having been granted on 31 August 2012.
At [29] of its reasons, the Tribunal noted that whilst the above migration history issues had little bearing on the applicant’s putative compelling reasons claim, such issues – referred to as constituting dubious evidence by the Tribunal – diminished the applicant’s overall credibility.
At [30] – [35] of its reasons, the Tribunal assessed the claims of the applicant that he was in a genuine relationship with his wife both in relation to the evidence before it as well as against the background of the applicant’s migration history (reasons at [35]).
At [33] – [34] the Tribunal:
a)Noted that the relationship between the applicant and his wife was of three (3) years duration.
b)Found that the evidence provided to the Tribunal supported the proposition that the relationship was a genuine one.
c)Found that the applicant and his wife had been in a continuing relationship since their marriage as claimed.
d)Found that the applicant’s wife had not been coerced into the relationship with the applicant and that she had participated in the relationship of her own free will (the Tribunal attached no weight to a “dob in” letter to the contrary).
Notwithstanding the matters referred to in [33] of these reasons, the Tribunal, at [35] of its reasons, properly drew a distinction between its accepting on the one hand that the applicant and his wife were in a genuine and continuing relationship, yet not necessarily accepting on the other hand that the applicant had not manipulated his circumstances in an attempt to create compelling reasons (where his relationship with his wife was integral to such assertion) as to why the Schedule 3 criteria should be waived. The Tribunal, having engaged with the very issue to be decided by it, then examined, at [36] – [45] of its reasons, the matters asserted by the applicant to be compelling reasons for waiver.
At [36] it was recorded that the applicant claimed that his safety and life would be in danger due to a likelihood that he would be attacked by one of his brothers if he returned to Jordan. The applicant also asserted that his wife could not accompany him to Jordan because she would also be at risk of similar harm.
At [37] it was recorded that the applicant claimed that when he was living in Jordan, he had a sexual relationship with a girl he met in December 2008. [5] The applicant claimed that pre-marriage sex was a huge transgression of his family’s Sunni Muslim religious beliefs.
[5] See corrigenda to reasons at CB pp. 342 – 343 changing 2018 to 2008.
At [38] the Tribunal recorded that at the hearing, the applicant had claimed that after his older brother had found out about the transgression, he had gone to the applicant’s house, and had threatened the applicant before firing a gun into the air in the street outside. At [39] the applicant said that he regularly spoke to his father who had “consistently and recently” advised him not to return to Jordan because of his oldest brother still having an intention to harm him. When it was suggested to the applicant that almost ten (10) years had passed since the applicant’s brother’s alleged threatening behaviour, and further, that his brother would need to remain with, and provide for, a young family (children aged approximately 14 years and 8 years) - and that therefore it was not likely that he would inflict harm on the applicant where such action would likely give rise to criminal action being taken against such brother - the applicant said that that would not prevent his brother because the cultural need to restore the family’s honour was very strong.
At [41], the Tribunal found that even if it was satisfied that the applicant had been truthful about events involving his brother (the Tribunal was not so satisfied), the Tribunal did not consider that the applicant would be at risk of serious harm at the hands of his brother if he was to return to Jordan because:
a)Almost ten (10) years had passed since the brother’s alleged threats.
b)The applicant’s alleged former girlfriend was now married.
c)The applicant’s older brother, who was a lawyer, would not risk depriving his young family of support by harming the applicant.
In those circumstances, having considered and assessed the evidence before it on that issue, the Tribunal found, as it was entitled to do, that it was not satisfied that those were compelling reasons for waiver of the Schedule 3 criteria.
At [42] the Tribunal noted the applicant’s claims, both in written submissions [6] and in oral submissions that if the applicant was required to make application offshore, then the applicant’s wife would be unable to survive financially and emotionally. At [43] the Tribunal set out evidence from the applicant and his wife to the effect that the applicant primarily received social security income but had received some paid acting money. It was further recorded that the applicant stated that he received income from Jordan in the amount of $1,100 - $1,200 per month, and that though he had had approval to work since February 2018, he had “not worked as he has to first study so he can get a good job.” It was recorded that each party paid half of the monthly rent in the amount of approximately $1,200, and that the applicant stated that he survived on the remaining $500 - $600 per month. The applicant stated that should he go offshore, his wife would not be able to pay the rent, or find another tenant so as to financially survive. The applicant’s wife stated that she could not live with her mother in Townsville or with her brother in Melbourne for domestic violence and familial reasons.
[6] CB pp. 325 – 326.
At [44] – [46] inclusive of its reasons, the Tribunal set out why it did not accept that it would be unreasonable for the applicant and his wife to rearrange their affairs for a period of time so as to enable the visa applicant to apply for the visa offshore. It was noted that the applicant had stated that he was a qualified lawyer and that he had previously worked in that profession in Iran and would be able to earn money thereby. The applicant was said to be able to continue to live off his income received from Jordan. The Tribunal further set out that it was not satisfied that it was unreasonable for the applicant’s wife to rearrange her affairs during the period of time required for the applicant’s offshore visa application to be processed. The Tribunal concluded that it was not satisfied that there were compelling reasons justifying waiver of the Schedule 3 criteria.
The Court finds that the Tribunal was entitled to look at all of the evidence before it, prior to arriving at its decision, in the way it did. Such evidence included a long history of visa applications and reviews being made by the applicant. The Tribunal was able to weigh up all of the evidence and arrive at reasoned conclusion. It was entitled to make adverse findings on credibility in the performance of its function as a primary decision maker par excellence. [7]
[7] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2001) 74
ALJR 405 at [67] per McHugh J.
Further, the consideration by the Tribunal of all of the evidence led it to view the applicant’s (dubious) evidence about his past migration history in a poor light. It made such finding in a considered manner having regard to the PAM3 strict policy consideration that waiver of cl. 3001 criteria should not occur, or be perceived to occur, so as to give to a person who has deliberately manipulated their circumstances an unfair advantage.
The reasoning of the Tribunal was neither illogical nor irrational. There was substantial factual evidence before the Tribunal enabling it to arrive at the decision which it did. It is of no moment that a different decision maker may have arrived at a different decision. The Tribunal clearly engaged upon a consideration of the applicant’s claims and found against the applicant. It has long been accepted that different minds might legitimately reach different conclusions. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:
“[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.”
When considering the appropriate test for determining whether a decision maker fell into jurisdictional error by reference to concepts of irrationality or illogicality, Beech-Jones J in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 at [113] said as follows:
“[113] The second standard is apposite where the facts being challenged form part of the determination of a state of satisfaction or an opinion upon which the exercise of power or jurisdiction by NCAT depended. Such a state of satisfaction or opinion is a “jurisdictional fact” (Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at [57] per French CJ). If the power is so conditioned then facts found in the course of forming that opinion or satisfaction can be reviewed on a wider basis than merely enquiring as to whether there was some evidence to support them (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 (“Eshetu”) at [138]ff per Gummow J). Instead it has been held that such an opinion or state of satisfaction can be reviewed if “the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (per Gummow and Hayne JJ); see also Eshetu at [145] per Gummow J; Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [34] and [37] per McHugh and Gummow JJ).”
In ARG15 & Ors v Minister for Immigration and Border Protection & Anor (2016) 250 FCR 109 at [47], their Honours Griffiths, Perry and Bromwich JJ said:
“[47] Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality 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 against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).”
It is a high-bar for an applicant to establish that a decision was either illogical or irrational in circumstances such as the present. It could not be said that the findings of the Tribunal constituted extreme illogicality or irrationality. The Tribunal did not err in the way it approached the question as to whether or not the applicant’s conduct, over a period of almost a decade, fell within the prohibition of his having deliberately manipulated his circumstances so as to constitute compelling reasons for waiver. The Tribunal was entitled to look at the totality of the applicant’s past conduct for the purpose of arriving at its decision.
Further, as to the second part of Ground 1 of the Amended Application, the Tribunal closely examined the putative evidence before it and arrived at a conclusion that there was no basis for finding that there were compelling reasons for waiver. The Tribunal appropriately assessed the evidence before it and was not satisfied that special circumstances existed so as to justify waiver. The Tribunal acknowledged the arguments advanced on behalf of the applicant but found against him.
The Tribunal arrived at considered findings on all issues after weighing up all of the evidence before it on the question of whether compelling reasons for waiver existed or not. Having done so, any error on the part of the Tribunal in its treatment of the policy considerations relevant to whether or not the applicant had deliberately manipulated his circumstances, if so found, would be immaterial in the light of the Tribunal’s findings as to the absence of putative compelling reasons. Any error on the part of the Tribunal in its consideration of those policy issues could not have realistically resulted in a different decision in any event.
As was said by Bell, Gageler and Keane JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] – [49]:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
[47] The drawing of inferences can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act. Although it is open to the Tribunal to form and act on its own view as to whether a precondition to the application of s 438 is met, the Tribunal can be expected in the ordinary course to treat a notification by the Secretary that the section applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers. Treating the section as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). Absent some contrary indication in the statement of the Tribunal’s reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.
[48] In the case of an invalid notification, where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account. The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result.
[49] Where non-disclosure of a notification has resulted in a denial of procedural fairness, the similar question that remains for the court on judicial review of a decision of the Tribunal is whether there is a realistic possibility that the Tribunal’s decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions. Whilst “[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome” (78), the task is not impossible (79) and can be done in these appeals.”
Further it cannot be said that no other rational or logical decision maker could not have made the same decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] 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.
…
[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.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[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 is no merit to Ground 1 of the Amended Application for review.
The applicant has failed to demonstrate jurisdictional error on the part of the Tribunal.
The amended application for review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 24 April 2020
CORRECTION (29.04.2020)
The name of the first respondent was changed from MINISTER FOR HOME AFFAIRS to MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
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