CBT16 v Minister for Immigration

[2019] FCCA 1031

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBT16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1031

Catchwords:
MIGRATION – Application for protection visa – adverse credibility findings – inconsistencies in applicants’ case – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476.

Cases cited:

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.
Azaey v Minister for Immigration and Border Protection (2015) FCR 341.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Minister for Immigration and Citizenship v SZJSS (2010) 273 ALR 122.
MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632.
SZUHJ v Minister for Immigration and Border Protection [2018] FCA 331.
MZYOI v Minister for Immigration and Citizenship (2012) 130 ALD 256 at [283] per Dodds-Streeton J.
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

First Applicant: CBT16

Second Applicant: CBU16

Third Applicant: CBV16

Fourth Applicant: CBW16

Fifth Applicant: CBX16

Sixth Applicant: CBY16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 694 of 2016

Judgment of: Judge Egan

Hearing date: 3 April 2019

Date of Last Submission: 4 April 2019

Delivered at: Brisbane

Delivered on: 16 April 2019

REPRESENTATION

Counsel for the Applicant: Mr M. Black

Solicitors for the Applicant: Stolar Law

Counsel for the Respondent: Ms A. Wheatley

Solicitors for the Respondent: Clayton Utz

IT IS ORDERED THAT:

1. The further amended application for review filed on 4 April 2019 be dismissed.

2. The first 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

BRG 694 of 2016

CBT16

First Applicant

CBU16

Second Applicant

CBV16

Third Applicant

CBW16

Fourth Applicant

CBX16

Fifth Applicant

CBY16

Sixth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant is a citizen of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 3 December 2012. He applied for a Protection (Class XA) Visa on 13 August 2013 through his registered migration agent. [1]

   [1]        CB page 244.

2. The second applicant (first applicant’s wife) and third applicant (first and second applicants’ eldest son) were included in the visa application as members of a family unit. On 13 January 2014 the first applicant sought to include a second born son as part of his application, such child having been born on 14 September 2013 (the fourth applicant).

3. On 16 August 2014 the fifth and sixth applicants (twins) were born.

4. On 3 February 2015 a delegate of the minister refused the Protection Visa application.

5. On 12 March 2015, the first applicant applied to the Administrative Appeals Tribunal (“AAT”) for a review of the delegate’s decision. The AAT wrote to the applicants and invited them to attend a hearing, give oral evidence and present arguments. On 17 February 2016 the applicants’ representative requested that oral evidence be taken from the second applicant at any hearing. On 29 February 2016 the applicants’ representative provided written submissions, and statutory declarations of the first and second applicants together with other material including some country information reports.

6. The hearing before the AAT took place on 1 March 2016. The first applicant attended at that time with his representative. The hearing was adjourned. The hearing resumed on 21 March 2016 at which time the first applicant and second applicant gave evidence. On 30 June 2016 the AAT affirmed the decision of the delegate not to grant the application for a Protection Visa.

7. On 28 May 2018 an amended application was filed for review of the decision of the AAT pursuant to the provisions of s 476 of the Migration Act.

History of Claims made by First Applicant and Second Applicant

1. The first applicant participated in an “Irregular Maritime Arrival Entry Interview” at Darwin on 20 December 2012. [2]

   [2]        CB page 391 – 407 inclusive.

2. At Part C of the record of interview [3], at question 1, when asked why he had left his country of nationality, the first applicant was recorded as having said:

   [3]        CB page 402.

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

   For my son. There are many political parties, BNP, Awami League etc. They forced us to join the parties. I told I won’t join the parties so they threatened me. If we join one party the other party will be our enemy. I have to make a living. They threatened me that they would kidnap my son. I said I would tell the police. Then I thought if I reported to the police they will come and finish the whole family. I didn’t tell my parents or brothers about this. I realised that once they threatened me they will do so for the rest of my life. Then I realised that there won’t be any safety and security for my family, esp my son. I decided to take this step to travel to Malaysia for my family’s sake. And then to Australia.”

   At question 7, when asked whether there were any armed groups, political groups or religious groups operating in the area in which the first applicant lived, he replied “Yes”.

3. It is of significance that at the entry interview, the first applicant :

   a)Asserted that he had been threatened by a group of people from a political party and that he had been told that his son would be kidnapped if he didn’t join one party.

   b)Mentioned the BNP and the Awami League as being political groups, one of which it must be inferred the first applicant was referring to as having members who had threatened his safety and that of his family – “esp my son”.

   c)Said that after the threats were made he decided to travel to Malaysia and then to Australia “for my family’s sake”.

4. In the first applicant’s application for a Protection Visa sent by his migration agent’s letter dated 9 July 2013, [4] a statutory declaration of the first applicant was attached as part of the accompanying documentation to such application. It was significant that in such statutory declaration dated 3 July 2013 it was relevantly declared by the first applicant as follows:

   [4]        CB page 244.

   a)By paragraph 4 – that the Awami League had come to power in Bangladesh around 2008 and that it had exerted power within the district where he lived, namely Kushtia District.

   b)By paragraph 8 – that in mid-2012 a group of thugs had arrived at his home in the middle of the night. The first applicant said that everyone had been asleep and that he had no idea who it was that was knocking on his door. A demand was made for the first applicant to open the door.

   c)By paragraph 9 – that when the first applicant opened the door a group of 15 – 20 people entered the home, all of whom were wearing masks and dressed in black clothes thereby preventing their identification. The first applicant said that one of the men put a pistol to his head, telling him to join “their political party”. The first applicant told them that he was a poor person from a poor family and that he didn’t want to join them or be involved with any political group.

   d)By paragraph 10 – that the men were typically thugs who had political connections. They were normally connected to the then ruling party (namely the Awami League) which enabled them to extort and threaten villagers, particularly those who were poor. For those reasons, the first applicant believed that those people were connected to the ruling Awami League.

   e)By paragraph 11 – that before they left the applicant was told that he had one week to decide whether he would join the political group. The first applicant said that he was told that if he went to the police they would kill him within 24 hours.

   f)By paragraph 12 – that one week later, a group of men returned to the first applicant’s home in the middle of the night, asking him whether he had made a decision. The first applicant said that he told the group that he needed a few more days to make a decision whereupon one of the men grabbed him by the throat and attempted to strangle him. The first applicant asserted that he begged the men not to kill him as he had a son whereupon he was told that if he didn’t “join them” they would kidnap and kill his son.

   g)By paragraph 14 – it was asserted that about one month after the initial visit a group of twenty men returned to the first applicant’s home whereupon he asked for more time. It was asserted by the first applicant that the men assaulted him, some holding him while others kicked him. It was asserted that one of the men attacked the first applicant with a ‘Da’ which is a long curved blade which caused the first applicant to receive a cut to his head and leg which resulted in bleeding and which subsequently required medical attention for suturing and bandaging.

   h)By paragraph 16 – it was asserted that about one week after the first applicant had been assaulted he received a telephone call from one of the men who had attended at his home demanding the payment of 2 Lakhs (200,000 Taka).

   i)By paragraph 17 – that the first applicant had made plans to leave.

   j)By paragraph 18 – it was asserted that on 31 October 2012, one day before the first applicant planned to leave with his family, some men returned to his home late in the evening at which time the first applicant begged them to give him more time whilst agreeing to pay them the money previously demanded of him on 10 November 2013, that being at a time after he would have left the country with his family.

5. On 26 February 2016 the first applicant’s migration agent sent a submission together with supporting documentation to the AAT. [5] By paragraph D of such submission on CB 78, such submission provided as follows:

   “D. In the PA’s Statutory Declaration (attached), he claims he was a market trader in the rag-trade and helped his father in the business but because the business was in the market they were exposed to the Thika group, an arm of the Awami League sanctioned by the government who were goods who trafficked in humans, extorted, assaulted, murdered and even raped their victims.”

   It is of significance that in such paragraph the migration agent referred to the “Thika Group” as being an arm of the Awami League.

   [5]        CB page 74.

6. By paragraphs G – N of such submission, referencing the first applicant as PA (Protection Applicant), it was provided as follows:

   “G. It is on the record that the PA is outside of Bangladesh.

   H. Because of the PA’s personal experiences in his village, the PA fears persecution as defined in s91R(1) of the Act and “serious harm” as defined in s91R(2) of the Act. The persecution is official tolerated by the Awami League and the authorities of Bangladesh do not seem to control the persecution. The government has failed or is unable to protect the applicant from persecution as detailed in the attached reports from various organisations such as the UNHCR, Amnesty International etc.

   I.   The PA is a young villager plying his trade in the village markets. This is the type of person the Thika Group tend to intimidate to join their ranks. This then is a Convention reason as the PA belongs to a particular social group. The association of this group with the Awami League is well documented. The Group is involved in human trafficking, extortion, physical assault murder and rape. The PA has been subject to the conduct of the Group and the experiences that he and his wife have been through only perpetuate the fear of persecution.

   J. The fear is well-founded and because of previous experiences, the PA is unwilling to avail himself of the protection of his country because there is a "real chance" of being persecuted for a Convention reason. 'This "real chance" is not remote.

   K. Augmenting the Convention reasons for a protection visa, the PA's spouse has further substantial grounds that she will suffer "significant harm" if she is removed from Australia on the grounds that she knows or did know a location of the Thika. Group where humans were trafficked from and had witnessed her attackers and could give an account of her rape to a properly constituted court. The PA also believes that he and his family will be significantly harmed and subjected to inhuman treatment or punishment.

   L. A curiosity in the interviews with the PA and his wife was the issue of her kidnapping and rape and the non-disclosure of this fact to the DIBP during interview. The issue of violation of Bangladeshi women appears to be a taboo subject (because of cultural and religious teachings, and family embarrassment) and at the DIBP interview the PA could not bear to bring this fact to the delegate because there was a male interpreter from Bangladesh.

   M. It was only on my insistence through the PA's interpreter that the writer was able to discern the reasons for non-disclosure. The PA’s wife would not discuss the issue with the writer as only males were present including the interpreter. The PA's wife stated that she had said everything in her Statutory Declaration. Further, the PA explained that the number of Bangladesh migrants in Queensland is small and that it would not take long for all of the Bangladesh community in Brisbane to know that his 'wife had been raped. This would only hurt the PA with further deep shame and embarrassment.

   N. Therefore, for this Hearing the PA has requested a Bengali interpreter of Indian descent. Regrettably, the writer did not cover the gender requirement.”

7. At CB 81 – 88 inclusive, there appears the further statutory declaration of the first applicant attached to the 26 February 2016 submission. That submission relevantly provided as follows:

   a)By paragraph 8 – that the Awami League formed a new government for Bangladesh on 29 December 2008.

   b)By paragraph 11 - that at times before 1 May 2012, the first applicant’s father was paying extortion money to members of the group called Thika.

   c)By paragraphs 12-15 inclusive – that at times between 1 May 2012 and 2 June 2012 members of the Thika group had attended at the first applicant’s father’s business collecting money and otherwise threatening the first applicant should he not join the Thika group.

   d)By paragraph 19 – that on 3 June 2012 around midnight the first applicant and his family were awakened to loud knocking on their door. It was said by the first applicant that when they were asked who was knocking the members of the group said “open the door or we will break it. We are from Thika group”. It was said that there were 10-20 men wearing cloths over their faces to disguise their identities. Three were said to have guns and it was said many others were carrying ‘Ramda’ which were big knives “used for killing people and cutting cane.” The first applicant said that five of the men came inside the house. Three were armed with guns and two had a Ramda. The first applicant said that when asked where his father was he said that his father wasn’t at home, politely asking the five of them to leave. The father then appeared, whereupon one of the men was said to have grabbed the first applicant by his neck, shouting “Why did you lie?” The first applicant then said that one of the other men put a gun to the first applicant’s head and threatened his father, saying “If your son joins our group you will have no problem. You will not face any more problems. You have got one week to think about it, and we will come back a week later.” The first applicant alleges that the men threatened his father, saying “If you go to the police you will find your son dead in 24 hours.”

   e)By paragraphs 20-22 – the first applicant asserted that he was physically and verbally threatened if he didn’t join the Thika group.

   f)By paragraphs 24-30 – the first applicant asserted that he had been assaulted on 30 August 2012 requiring him to receive medical treatment. It was asserted that a week later the first applicant received a phone call saying that the first applicant was lucky to have escaped with his life, demanding the payment of further money. It was asserted that on 31 October 2012 five men again returned to the first applicant’s home late in the evening arranging for the payment of further extortion money. On 1 November 2012 at about 11:30 pm the first applicant said that he had received a number of calls from his father who said that if he returned in the next few days then “they” would kill his wife.

   g)By paragraph 31 – the first applicant told his father to not go to the police or anybody else and not to share any of the events with any of their relatives. For the first time the first applicant asserted that he had told his father “not to tell anyone my wife had been kidnapped.”

   h)By paragraph 35 – the first applicant asserted that his brother in law had telephoned him on 3 November 2012 advising him that the first applicant’s wife had escaped and was on her way to Dhaka.

   i)By paragraphs 36-42 inclusive – the first applicant asserted that after the return of his wife he became aware that his wife had been raped, after which medical treatment was arranged for her. The first applicant then asserted that after having obtained sufficient funds to facilitate their escape, the first applicant, his wife and their son escaped to Thailand by boat from Chittagong.

8. A statutory declaration of the second applicant appeared at CB 67 – 70 inclusive. In that statutory declaration, the second applicant declared that she had been raped but had later been able to escape. By paragraph 16 of such statutory declaration, the second applicant declared that she feared that the members of the group who kidnapped her would kill her and the first applicant because she had witnessed the location from which human trafficking operations were conducted, and because she could identify men from the Awami League political party who had been involved.

Analysis of Facts and Submissions

1. The tribunal made many adverse credibility findings against the applicants’ claims. It has been held that credibility findings are findings of fact entrusted to the decision-maker alone, and that findings as to credibility are findings of fact par excellence and within the tribunal’s domain alone. [6]

   [6]        Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168

2. The tribunal found that the evidence of the first applicant and the second applicant was inconsistent and implausible, finding that the applicants had fabricated the claimed past harm by members of the group ([69] at CB 22). It has been held that the reasons of the tribunal in arriving at its decision are not to be scrutinised “with an eye keenly attuned to error”. [7]

   [7]        Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per

3. It has also been held that the weighing of various pieces of evidence is a matter for the tribunal. [8]

   [8]        Minister for Immigration and Citizenship v SZJSS (2010) 273 ALR 122.

4. As to the suggestion that the adverse findings on credibility against each of the first applicant and second applicant were irrational or illogical because of the assertion that significant evidence was overlooked – namely a claimed failure by the tribunal to properly address “kidnap threats”, and also the failure of the tribunal to place any weight on evidence produced from a doctor about the extent of the second applicant’s alleged injuries – the tribunal did weigh up all of the evidence before arriving at its decision, stating that the evidence presented on behalf of the applicants did not outweigh the concerns of the tribunal with material parts of the applicants claims. [9] As to the authenticity of the doctor’s report, the tribunal at [60] – [63] discussed how document fraud was prevalent in Bangladesh. It dealt with letterhead inconsistencies and text and spelling issues in documents presented to it, as it was entitled to do. It was not satisfied that the documents were genuine.

   [9] Tribunal reasons at [22].

1. At [48] – [51] of its reasons, the tribunal closely examined the question of how the applicants dealt with the issue of identification of the groups said to have threatened, harassed, assaulted and extorted the first applicant and his father.

2. At [52] of its reasons, the tribunal pointed to differing and inconsistent accounts put forward by the applicants as to threats of kidnapping. It looked at the evidence as a whole, and in particular to the differing accounts put forward in interviews and statutory declarations relating to that issue, excerpts of such interviews and declarations having been referred to above. It appropriately dealt with the issue, both in relation to threats against the first applicant, the second applicant and the third applicant.

3. As to the ground of review which asserted that the tribunal had misdirected itself or otherwise failed to address the proper question before it, the tribunal appropriately dealt with the status of the first applicant and his father as merchants involved in a family market business. It did not accept that the first applicant or his family was targeted because of his being a merchant trader. [10]

   [10] Tribunal reasons at [30].

4. Even if the tribunal had not properly considered or found that the first applicant was a member of a particular social group, any such failure would not constitute an error going to the tribunal’s jurisdiction. See MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 at [18] per Finkelstein J where it was said:

   “The appellant contended before this court that this was an impermissible line of reasoning. He argued that the steps set out in Dranichnikov must be followed even if the Tribunal is of the view that the applicant’s fear is unrelated to the membership of any such group. This is plainly incorrect. Courts will frequently skip over more difficult questions if the main issue can be determined from the answer to a simpler later question: in the law of negligence, there is no need to ask whether there was a duty of care if it is obvious that there has been no damage. In this case, moving to the last step in Dranichnikov was quite proper.”

5. The tribunal found that after assessing all of the evidence it was not satisfied that the applicants had a well-founded fear of persecution. [11]

   [11] Tribunal reasons at [37].

6. As to the assertion that the tribunal’s finding that the second applicant had fabricated the claim of her being abducted and raped was not supported by probative evidence, or was otherwise irrational or illogical, the tribunal rejected the claims in circumstances where it was open for it to do so. As to the exercise required to be undertaken by a tribunal in relation to fact finding, it was said in SZUHJ v Minister for Immigration and Border Protection [2018] FCA 331 at [24] per Flick J:

   “The findings of fact made by the Tribunal were open to it upon the evidence and, in particular, upon the fact that the claimed incident that was said to have occurred in December2009 was a “new claim” and a claim exposing inconsistencies. The task of fact finding has long been accepted as a task entrusted to the Tribunal: Osland v Secretary, Department of Justice (No 2) [2010] HCA 24 at [19], (2010) 241 CLR 320 at 332 per French CJ, Gummow and Bell JJ; Repatriation Commission v O’Brien (1985) 155 CLR 423 at 430 per Gibbs CJ, Wilson and Dawson JJ. So, too, has it been long-accepted, that findings as to credibility are the function of the primary decision-maker “par excellence”: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], (2000) 168 ALR 407 at 423 per McHugh J . To confine the Tribunal to only being permitted to make a finding consistent with the factual account being given by a claimant in the absence of rebutting evidence and not by reference to inconsistencies in that factual account would be inconsistent with the task entrusted to the Tribunal by the legislature to make findings of fact by reference to the evidence before it and would be inconsistent with authority: CQG15 [2016] FCAFC 146, (2016) 70 AAR 413. Although the difficulties of proof which may be encountered by a claimant seeking protection may readily be accepted, the Tribunal is not obliged to accept uncritically a factual account given by, or submissions advanced by, a claimant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs(1994) 52 FCR 437 at 451 to 452 per Beaumont J”

7. As to the question of alleged illogicality and irrationality, it is to be noted that it is a high threshold for jurisdictional error to be established on that basis. [12]

   [12]       MZYOI v Minister for Immigration and Citizenship (2012) 130 ALD 256 at [283] per Dodds-

8. The tribunal logically and rationally dealt with the claims made by the applicants. It addressed each of the matters raised in the statements, interviews and declarations made by the first and second applicants, as well as the submissions made on their behalf by their agents.

9. The tribunal has not failed to make an obvious inquiry about a critical fact. As was said by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]-[27]:

   “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

   [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

   [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

10. 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]:

    “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.”

11. 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 [67] 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.”

12. The applicant has failed to establish any jurisdictional error on the part of the tribunal.

13. The application for review is without merit and is dismissed.

14. The Court will hear the parties as to costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 12 April 2019

         ALR 407 at [67] per McHugh J.
         Azaey v Minister for Immigration and Border Protection (2015) FCR 341 at [38].         Brennan CJ, Toohey McHugh and Gummow JJ.         Streeton J.