CDD23 v Minister for Immigration and Multicultural Affairs
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CDD23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 276
File number(s): ADG 260 of 2023 Judgment of: JUDGE GERRARD Date of judgment: 28 February 2025 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to apply an active intellectual process – whether the Tribunal failed to sufficiently explain its process of reasoning – jurisdictional error established – writs issued Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 476
Migration Regulations 1994 (Cth) Sch 2
Cases cited: Australian Leisure and Hospitality Group Pty Ltd v Commissioner of Police [2017] WASC 88
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
ECE21 v Minister for Home Affairs (2023) 297 FCR 422
ETA067 v The Republic of Nauru (2018) 360 ALR 228
Hancock v Executive Director of Public Health [2008] WASC 224
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Jabari v Minister for Immigration (2023) 298 FCR 431
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
NAKD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 321
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Singh v Minister for Home Affairs (2019) 267 FCR 200
SZTGS v Minister for Immigration and Border Protection (2014) 142 ALD 558
Tickner v Chapman (1995) 57 FCR 451
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of last submission/s: 31 January 2025 Date of hearing: 14 February 2025 Place: Adelaide Counsel for the Applicant: Oliver Morris Solicitor for the Applicant: MSM Legal Counsel for the First Respondent: Josephine Battiste Solicitor for the First Respondent: HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 260 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CDD23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
28 FEBRUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 25 July 2023.
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the applicant’s review application according to law.
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 GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Protection (Subclass XA-866) (Permanent) visa (the visa). For the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has found jurisdictional error in the Tribunal’s decision. On that basis, the application has succeeded.
BACKGROUND
The applicant is a citizen of Albania (Court Book (CB) 2). On 13 April 2016, he first arrived in Australia on a visitor visa (CB 9, 11).
On 11 July 2016, the applicant made a valid application for a protection visa (CB 1-25, 354). The applicant provided various identity documents, as well as written submissions, in support of his application (CB 26-63).
On 15 March 2018, the applicant appointed a registered migration agent as his authorised representative (CB 82-84).
On 15 November 2019, the Department of Home Affairs (the Department) advised the applicant’s representative that the applicant’s visa application was unable to be located within the Department and requested that the application be resubmitted (CB 86).
On 31 January 2020, the applicant’s representative provided a copy of the visa application (CB 91-133). The copy of the visa application was accompanied by supporting documentation provided on 31 January 2020 (CB 134-143) and 5 February 2020 (CB 144-312).
On 24 February 2020, the Department invited the applicant to attend an interview scheduled for 17 March 2020 (CB 314-315). The applicant attended the interview with his migration agent and an Albanian interpreter (CB 356).
On 17 April 2020, the applicant’s representative provided further submissions in support of the visa application (CB 321-348).
On 13 May 2020, a delegate of the Minister refused to grant the applicant the visa (CB 354-373). The delegate found there was no evidence to indicate that the applicant would be treated discriminatorily or mistreated and harmed because of his political opinion in general, or in opposition to the Socialist Party for Integration (LSI) and the Socialist Party of Albania (PSS), if he returned to Albania (CB 367).
On 20 May 2020, the applicant applied to the Tribunal for review of the delegate’s decision (CB 374-375).
On 19 October 2022, the applicant appointed a lawyer as his authorised representative (CB 386-387).
On 10 November 2022, the applicant was invited to attend a hearing scheduled for 18 January 2023 (CB 397-399).
On 14 November 2022, the applicant’s representative provided a ‘Response to hearing invitation’ (CB 402-404), accompanied by supporting documentation and country information (CB 405-726).
The applicant attended the Tribunal hearing on 18 January 2023 and 16 February 2023, accompanied by his representative and an Albanian interpreter (CB 727, 871).
On 15 February 2023, prior to the second part of the Tribunal hearing, the applicant’s representative provided further documents for the Tribunal’s consideration (CB 738-870).
On 21 February 2023, the Tribunal invited the applicant’s representative to comment on the applicant’s evidence that he worked a 7-day work week including Sundays (CB 875-878).
The applicant provided a statutory declaration in response to the invitation to comment, as well as further information in addition to what was requested (CB 879-944).
On 25 July 2023, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 948-968).
On 28 August 2023, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal began by identifying the visa under review (at [1]). The Tribunal observed that a delegate of the Minister refused to grant the applicant the visa on the basis that they were not satisfied he had been mistreated or harmed by Albanian authorities due to his political beliefs, or that he would face mistreatment or harm if he returned to Albania (at [2]).
The Tribunal confirmed that the applicant had appeared before it on 18 January and 16 February 2023 to give evidence and present arguments (at [3], [69]). The applicant’s representative was present on both dates and the hearings were conducted with the assistance of an Albanian interpreter (at [4]-[5]).
The Tribunal referred to the relevant legislative framework for the grant of a protection visa in s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations), identifying in particular that the applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c) of the Act (at [6]). As the Tribunal found that the applicant did not satisfy s 36(2)(b) or (c), it noted that he must therefore satisfy either the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) (at [9]-[10]).
The Tribunal confirmed that the applicant made protection claims in various forums, which included:
·An attachment to his visa application (at [17]-[35]);
·Submissions dated 4 February 2020 (at [36]-[38]);
·His departmental interview on 17 March 2020 (at [39]-[47]);
·Submissions dated 17 April 2020 (at [48]-[51]);
·Statutory declaration dated 11 January 2023 (at [52]-[68]);
·Evidence before the Tribunal at the hearing on 18 January 2023 (at [69]-[102]);
·Submissions dated 15 February 2023 (at [103]-[114]);
·Evidence before the Tribunal at the resumed hearing on 16 February 2023 (at [115]-[161]); and
·Further submissions and country information dated 3 March 2023 (at [162]-[166]).
The Tribunal outlined the applicant’s protection claims, the primary claims of which are set out as follows:
·In 2013, he was involved with the LSI and the campaign of their local representative, and complained to this representative as he was disappointed by the party’s performance after their successful campaign (at [21]-[22]);
·Following his complaint, the representative’s brother beat him and threatened him with prison (at [22]);
·He became a member of the Legality Party (the PLL), which was in coalition with the Democratic Party (the PD), who appointed the applicant as observer for the local elections in June 2015 (at [23]);
·On the election day, he observed many irregularities by the LSI, which he reported to an EU representative (at [24]);
·The next day, he received a threatening call from intelligence services who said he would end up in prison or dead for reporting to the EU representative as his actions had cost the PD votes and money (at [25], [171]);
·He was scared and asked friends from the PD and PLL for help, but they could not assist him. He stayed at home for a month but continued to receive threatening calls and texts (at [26]-[27]);
·On 15 November 2015, five months after the election, he was kidnapped on his way home from work by intelligence services and taken to an abandoned warehouse where he was beaten and tortured, and accused of having worked against the government when reporting irregularities on election day (at [28]);
·He was covered in red marks from the beatings and sought treatment from a local doctor for these wounds (at [32]);
·Two days after being kidnapped, he was taken home and told to leave Albania and Europe and not to return or he will be killed (at [30]); and
·He has suffered tremendous trauma, and psychological and physical torture, by government agents (at [35]).
In respect of the claims set out above, the Tribunal made the following findings.
The Tribunal noted the applicant’s claim that he did not follow the results of the election, so he does not know whether his complaint about the LSI had any impact on the vote counting (at [102]). The Tribunal had regard to a report from the Office for Democratic Institutions and Human Rights relating to the local elections of June 2015 and 2019, and parliamentary elections of June 2017 and April 2021, in the applicant’s submissions dated 15 February 2023 (at [103], [105]). The Tribunal observed that, in the penultimate paragraph of page 2 of the report, there was no effective electoral dispute resolution process in the election, and the way complaints were dealt with often left stakeholders “without effective redress” (at [110]). The Tribunal accepted that the complaints process was not seen as effective, but found that the report did not suggest that complaints gave rise to repercussions like those described by the applicant (at [112]). The Tribunal found there was no evidence that the applicant’s complaints had any effect on the vote counting or the election, or that persons making complaints were threatened or harmed (at [90], [113], [169], [172]).
The Tribunal observed the applicant’s evidence regarding threatening calls and texts to be inconsistent with his later evidence, which was that the telephone and text threats occurred only on one day (at [27]). The Tribunal was ultimately not satisfied that the applicant received such calls and text messages as he claims, or was made the target of any threat by the Albanian intelligence services (at [172]).
The Tribunal observed that the five-month period between the election and the applicant being kidnapped is “a long time to leave things” without making any contact (at [154]), relying on the applicant’s claim that there was no apparent reason why they would have waited five months (at [154], [174]). The Tribunal asked the applicant why they did not kill him when they had him in their control, to which the applicant replied that he does not know (at [156]). Ultimately, the Tribunal was not satisfied that the applicant was kidnapped by the Albanian intelligence service and beaten and whipped as claimed (at [175]).
In respect of the applicant’s wounds, the Tribunal put to the applicant that if he had been whipped so recently by his kidnappers, and the whipping was hard enough to leave scars through a jacket, it “seems odd” that he would not have sought treatment for those wounds at the same time he sought treatment for his facial wounds (at [152]). The Tribunal noted the applicant’s reply that he had not been worried about the whipping injuries. The Tribunal found this explanation for not seeking treatment to be unconvincing and was not satisfied the applicant was whipped (at [153]).
The Tribunal was not satisfied that the applicant would face being harmed or killed by the Albanian intelligence service or anyone else if he returns to Albania (at [177]).
The Tribunal was also not satisfied that the applicant has suffered tremendous trauma, and psychological and physical torture, by government agents as he claimed (at [178]).
The applicant put to the Tribunal that all of Albania is unsafe for him, relying on a statutory declaration dated 11 January 2023 with four annexures in support of this claim (at [52], [54], [56], [59]).
The Tribunal had primary regard to the fourth annexure provided by the applicant, which contains nine articles about violence and murders associated with politics, elections and football in Albania (at [59]).
The Tribunal referred to article one, dated 1 April 2021, which reports that criminal charges against Arben Ndoka were withdrawn. The Tribunal found that this article does not suggest vulnerability on the part of Albanian people in general (at [60]).
The Tribunal referred to article two, a headline from 2017 that Arben Ndoka’s brother was killed with no further explanation. The Tribunal found that this does not “obviously support” any of the applicant’s claims (at [61]).
The Tribunal then referred to article three, dated 22 April 2021, about a politician being killed in a clash between supporters of rival parties in the leadup to an election. The Tribunal considered that this article does show there had been a violent political clash, but was not satisfied that it demonstrates or suggests the applicant would be at risk if he returned to Albania (at [62]).
The Tribunal was not satisfied that articles four to nine were relevant to the applicant’s claims (at [63]-[67]).
Whilst the Tribunal acknowledged that there is sometimes an element of violence associated with politics in Albania, it was not satisfied that all of Albania is unsafe for the applicant (at [58], [68]).
The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (at [217]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 28 August 2023 contains two particularised grounds of review. However, in written submissions filed by the applicant on 21 January 2025, and at the hearing of this matter on 14 February 2025, the applicant confirmed that ground two was no longer pressed. The remaining ground is as follows (without alteration):
1.The Administrative Appeals Tribunal constructively failed to exercise its jurisdiction to conduct a review of the Minister's decision in that it failed to engage in a sufficient active intellectual process in dealing with the evidence and making findings of fact relevant to the Applicant's claims.
Particulars
a. The Tribunal's Reasons with respect to its adverse determination of factual issues and the rejection of the Applicant's claims are expressed in terms that are almost completely conclusory (particularly at [169], [172], [175], [176], [177], [178]) and do not identify any actual reasoning process engaged in by the Tribunal.
b. The Tribunal at [171] and [174] referred to matters to which it had regard then simply expressed conclusions without explaining the process of reasoning by which the conclusions were reached, or how the Tribunal resolved competing inferences arising from the matters it listed.
c. The Tribunal's reasons disclose no process of actually weighing the evidence, articulation of the different effects of the evidence and reasoning as to why preference was given to some evidence over other evidence.
d. The Tribunal did not explain at all how it reasoned about the evidence (which it accepted) of scars on the Applicant's lower back, and of facial injuries for which the Applicant sought on 18 November 2015 (wrongly stated at [174(e)] to be 15 November 2015.
e. The above matters, if not jurisdictional errors in themselves, evidence and reflect a failure of the Tribunal to engage in the necessary intellectual process to determine factual matters relevant to a protection visa application.
The applicant filed an affidavit with that judicial review application on 28 August 2023. The affidavit annexed a copy of the Tribunal’s decision.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 28 August 2023 (the affidavit being taken as read and in evidence at the hearing on 14 February 2025), a Court Book numbering 969 pages (marked as Exhibit 1), written submissions filed on behalf of the applicant on 21 January 2025, and written submissions filed on behalf of the Minister on 31 January 2025.
CONSIDERATION
The applicant contends that the Tribunal failed to engage in a sufficient active intellectual process in dealing with the evidence and making findings of fact relevant to the applicant’s claims and in so doing constructively failed to exercise jurisdiction.
It has long been established that the consideration of a representation or submission requires an “active intellectual process” (see Tickner v Chapman [1995] FCA 1726 (Tickner) at [39]. In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Carrascalao), Griffiths, White and Bromwich JJ (at [47]) articulated that in determining whether a decision-maker has engaged in an active intellectual process, the Court must:
…conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case.
However, their Honours noted that a finding by the Court that a decision-maker has not engaged in an active intellectual process is not to be made lightly and must be supported by clear evidence (Carrascalao at [48]). The Court must be watchful that it does not slide into impermissible merits review (Carrascalao at [32]).
In Tickner, Kiefel J (as her Honour then was) said the following about what is required by consideration at [40]:
It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.
In Singh v Minister for Home Affairs (2019) 267 FCR 200, Reeves, O’Callaghan and Thawley JJ (at [34]) held that a Tribunal, whose task is to review, may commit jurisdictional error by failing to engage in an active intellectual process or give proper, genuine and realistic consideration to:
(a)A “substantial, clearly articulated argument relying upon established facts” (citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed);
(b)A claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” (citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ); or
(c)A matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” (citing ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ).
The importance of this task should not be undervalued as articulated in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3]:
The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people.
In written submissions, the applicant submitted that there is no evidence on the face of the Tribunal’s reasons that demonstrates any intellectual engagement with the submissions, evidence and claims it summarised. The applicant submitted that the Tribunal stated its conclusions “baldly” by leaving the reader “to guess as to the process of reasoning” and failed to articulate a chain of reasoning to explain why it reached the conclusions it had with respect to the applicant’s evidence. In addition to the authorities referred to above, the applicant relied upon the decision of Banks-Smith J in Australian Leisure and Hospitality Group Pty Ltd v Commissioner of Police [2017] WASC 88 where her Honour gave the following guidance at [14]-[15] in respect of the appropriate approach to reasons:
It is well recognised that when an administrative decision-maker gives reasons, they are meant to inform. They should not be over scrutinised for perception of error. They should be read as a whole and considered fairly.
At the same time, the reasons must enable the parties to comprehend the process of reasoning and evaluation. It is not enough to summarise evidence and state conclusions. The evaluation must be apparent.
The applicant further relied upon the lengthy discussion of the authorities in respect of the content of reasons in Hancock v Executive Director of Public Health [2008] WASC 224 at [56]-[63]. Amongst the principles drawn from those cases, it was observed that the adequacy of reasons can be tested by considering whether the affected party may understand why the determination was not more favourable and that a mere listing of matters said to be considered would constitute a failure to provide reasons. In that decision, it was observed at [73], citing Re A Medical Assessment Panel; Ex parte Hays at 7 (unreported, FCt SCt of WA, Wheeler J, 5 October 1998):
As has been said on many occasions, no standard of perfection is required in preparation of the reasons, and they are to be considered fairly and not combed through ‘with a fine appellate toothcomb to find error’: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291, Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157. At a minimum, however, it seems to me that in a case of this kind the panel must not merely list the materials upon which it relied, without any hint as to what portions of those materials is considered particularly relevant or the way in which it reconciled any portions of those materials which might have been in conflict. It should at least have set out what it considered to be the material facts which emerged from the materials to which it referred, and its process of reasoning from those material facts to its conclusion. Although each case must be considered individually, having regard to the purpose of the obligation to provide reasons, it is generally sensible for a fact finding body of this kind to make a particular reference to material which would appear to be inconsistent with the conclusion which it reached (such as the EMG and nerve conduction study in this case) and to explain why such material was considered not to be relevant, or to be outweighed by other considerations.
In written submissions, the Minister submitted that, whilst agreeing that the decision-maker must read, identify, understand and evaluate claims before it, the decision-maker is permitted to “sift” the claims and evidence put before it, “attributing whatever weight or persuasive quality is appropriate” (Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1) at [24] per Kiefel CJ, Keane, Gordon and Steward JJ, Gageler J agreeing).
The Minister also relied upon Jabari v Minister for Immigration (2023) 298 FCR 431 (Jabari) at [51]-[53], citing a discussion of Plaintiff M1 in ECE21 v Minister for Home Affairs (2023) 297 FCR 422 (ECE21) at [7]-[9]. In Jabari, the Full Court of the Federal Court (at [52]) summarised the position of Mortimer, Colvin and O’Sullivan JJ in ECE21 that, as a consequence of Plaintiff M1:
…provided the decision-maker has averted to and understood the representations the applicant has made, the degree or quality of engagement they provide to a given representation is a matter for them, as long as they act within the bounds of rationality and reasonableness.
In oral submissions, the Minister submitted the requirement that a decision-maker engage with an applicant’s claims is an active intellectual process regarding real consideration and, namely, the significance and weight to be attributed to it, but the requisite level of engagement is one that must occur within the bounds of rationality and reasonableness. In respect of the country material specifically, the Minister submitted that the Tribunal engaged with the country material provided by the applicant and made conclusions it considered safe to draw from that material based on what the applicant had said about it.
At this point it is helpful to set out those findings which were impugned by the Tribunal and the paragraphs which surround them in order to provide context. The Tribunal commences its “findings” at paragraph [167]. After setting out in point form the applicant’s evidence that the Tribunal “had regard to”, its findings are set out as follows (at [169]-[179]):
[169] The Tribunal is not satisfied that the applicant’s complaints on the day of the election had any impact on the outcome of the election.
[170] The Tribunal is not satisfied that the applicant’s complaints on the day of the election were raised beyond an informal level or that they drew the attention of the government.
[171] The Tribunal has regard to the applicant’s evidence that;
(a)He was called and sent text messages the day after he attended the vote count and was told his actions had cost the PS votes and money.
(b) The caller or callers claimed to be from the Albanian intelligence services.
(c) Their threats on that day did not suggest he should leave Albania and Europe.
(d) The telephone threats occurred over the course of about one day.
(e) There were no further messages for about five months.
[172] The Tribunal is not satisfied that the applicant did receive such calls and text messages as he claims. The Tribunal is not satisfied that the applicant’s complaints had any discernible effect on the election and is not satisfied that the applicant was made the target of any threat by the Albanian intelligence services.
[173] The Tribunal finds it implausible that the threats to the applicant would have lasted one day then stopped for five months as the applicant says they did. The applicant’s response that “That is just the way they do things over there” was unconvincing.
[174] With regard to the applicant’s claim that he was kidnapped on 15 November 2015 and held for 2 days, the Tribunal had regard to:
(a)The applicant’s evidence that there was no event such as an upcoming election that may have precipitated a kidnapping.
(b)That there was no apparent reason why the Albanian intelligence services would have waited for five months after the election before kidnapping him.
(c)The applicant’s evidence that he had not been politically active in the intervening five months.
(d)The applicant’s evidence that, as part of the beating he suffered, he was whipped with a round, hard rope so vigorously that his back was lacerated through his jacket but that he did not seek medical treatment for these injuries despite attending a clinic within 45 minutes of the whipping.
(e)The evidence demonstrating that the applicant did have facial injuries on 15 November 2015.
(f)The applicant’s evidence that it was not for five months after the election that the Albanian intelligence service first directed him to leave the country and Europe, despite them having contacted and threatened him at the time of the election.
(g)The finding already made that the applicant’s complaints did not bear on the outcome of the election.
[175] On balance, the Tribunal is not satisfied that the applicant was kidnapped by the Albanian intelligence service and beaten and whipped as he claims.
[176] The Tribunal is not satisfied that the applicant was told by his kidnappers to leave Albania and Europe under threat of further harm or death as he claims.
[177] The Tribunal is not satisfied that the applicant faces being harmed or killed by the Albanian intelligence service or anyone else if he returns to Albania.
[178] The Tribunal is not satisfied that the applicant has suffered tremendous trauma and psychological and physical torture by government agents as he claims.
[179] The Tribunal notes that although the applicant’s grandfather was persecuted by the communist government which fell in 1992, there is no evidence of ongoing persecution of the applicant’s family and the Tribunal is not satisfied that there was relevant persecution of the applicant’s family at the time of the applicant leaving Albania.
The applicant accepted at the hearing that there appeared to be an evaluative process evident in relation to paragraph [169]. This was a paragraph which had been challenged in the application and contained a brief finding that the Tribunal was not satisfied that the applicant’s complaints on the day of the election had any impact on that election’s outcome. The applicant accepted that a contextual basis for this finding could be located at [90] where the Tribunal observed that there was no evidence that the applicant’s complaints affected the election, and at [102] where the Tribunal recorded the applicant’s evidence that he did not follow the results of the election and consequently did not know whether his complaint had any effect on its outcome. The Court observes that the findings at [90] and [102] are themselves somewhat cursory but ultimately accepts that it is not too difficult to ascertain a rationale to the Tribunal’s finding at [169] where it can be seen that it is fairly grounded in the applicant’s own evidence.
More problematic is the Tribunal’s finding at [170] that it was not satisfied that the applicant’s complaints on the day of the election were raised beyond an informal level or drew the attention of the government. The applicant submitted that, unlike [169], this is a conclusory paragraph which stood alone and without any contextual support. The applicant accepted that it is well-established that the Tribunal is not required to accept an applicant’s evidence uncritically (SZTGS v Minister for Immigration and Border Protection (2014) 142 ALD 558; NAKD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 321). Nevertheless, if a claim is raised, the applicant submitted that it needs to be evaluated before a conclusory statement is made with respect to that claim. Otherwise, the applicant submitted, there is no evident process of evaluation in the sense identified in Plaintiff M1.
The Minister submitted that paragraph [170] merely follows on from the preceding paragraphs [168] and [169]. However, in the Court’s view, [168] does no more than record the applicant’s evidence and, as observed above, [169] is directed to the different enquiry of whether the applicant’s complaints had any bearing on the outcome of the election. There appears to be no immediate nexus between those findings and the Tribunal’s conclusion at [170] that it was not satisfied that the applicant’s complaints were raised beyond an informal level or that they drew the attention of the government. This is important because that was a critical aspect of the applicant’s claim. Indeed, the issue of whether his activities drew him to the attention of the authorities is more far-reaching than his claim that his complaints had any impact on the election outcome. In the Court’s view, the Tribunal’s reasons do not demonstrate that it did engage with this aspect in the sense identified by the authorities referred to above. Furthermore, because of the centrality of this integer, the Court is satisfied that the failure to do so was material to the outcome.
The Tribunal records the applicant’s evidence in respect of threatening telephone calls and text messages he purportedly received from callers identifying themselves as Albanian intelligence services over the course of about one day at paragraph [171]. In the subsequent paragraph [172], the Tribunal states that it is not satisfied that the applicant did receive those calls and text messages but does not set out why. The remainder of that paragraph repeats the Tribunal’s earlier conclusion that it was not satisfied that the applicant’s complaints had any effect on the election and that it was not satisfied that the applicant was the target of any threats from the Albanian intelligence services. If that is indeed the basis for the Tribunal’s finding, it is somewhat circular and refers back to an earlier conclusory finding that the Court has found lacks an evident justification. The following paragraph [173] arguably provides some context where the Tribunal finds it implausible that the threats only lasted for one day and then stopped, and that the applicant’s explanation for this was unconvincing. The applicant submitted that, even read generously, this was a concern with the timeline that the applicant would receive threats and then be kidnapped five months later. There is force to that submission.
In respect of this paragraph, the Minister relies upon a much earlier statement at paragraph [27] that the applicant’s evidence was inconsistent with his prior statement where he continued to receive threatening calls and text messages. However, nothing further is said in that paragraph and at no point does the Tribunal suggest that its rejection of the applicant’s claim is based upon this supposed inconsistency. The Court finds that it is a stretch to seek context from an isolated sentence located some 150 paragraphs earlier. That is even more the case where the Tribunal does not resolve the inconsistency within [27]. In these circumstances, and being mindful not to engage in overzealous analysis, the Court is unable to ascertain the finding the Tribunal made. It is true of course that the Court should not minutely scrutinise a decision to find error. But it equally holds true that the Court should not minutely scrutinise a decision to find context. In this case, the Court cannot locate the basis of the rejection of the applicant’s claim and, having regard to all of the circumstances, does not think it is appropriate to draw inferences in that respect. On that basis, the Court finds that the Tribunal’s finding that the applicant did not receive threatening calls and text messages lacks an evident justification. Furthermore, this was a material error because an acceptance that the applicant had received such threats could have had an impact on the outcome of the decision.
The applicant also sought to impugn the Tribunal’s finding at [175] that “on balance” it was not satisfied that the applicant was kidnapped or mistreated by his kidnappers. However, the Court accepts that that paragraph should be read fairly with the preceding paragraph which sets out the aspects of the evidence that the Tribunal took into account in relation to his claim to have been kidnapped. Whilst that arguably gives the phrase “on balance” a significant amount of work to do, the Court is nonetheless satisfied that it is a clear and evident indication that the Tribunal considered and weighed up those specified matters in reaching a conclusion on the applicant’s claim.
Furthermore, the Tribunal’s finding at [176] that the applicant was not told by his kidnappers to leave Albania under threat of further harm logically flows from its conclusion that he was not kidnapped. It is clear that the Tribunal could not have accepted a claim that the applicant was threatened by his kidnappers once it found that he had not been kidnapped.
In the Court’s view, paragraph [177] is a clear conclusory statement recording that the Tribunal is not satisfied that the applicant faces being harmed or killed by the Albanian intelligence services or anyone else if he returns to Albania. However, in respect of this paragraph, it is clear to the Court that this was effectively the Tribunal’s conclusory statement in respect of all of the applicant’s claims to fear harm. So much was conceded by counsel for the applicant at the hearing.
However, paragraph [178] does appear to reference a specific claim. In that paragraph, the Tribunal declares it is not satisfied that the applicant has suffered “tremendous trauma and psychological and physical torture” by the government. The use of the phrase “tremendous trauma” is found in a brief sentence at the end of a statement filed by the applicant where he states “I have experienced tremendous trauma, psychological and physical torture by government agents” (CB 28). That sentence, in itself unsupported, is the concluding sentence of the applicant’s statement in which he describes his alleged kidnapping and mistreatment. The Court is of the view that this is also a wrapping-up of the applicant’s claims and is intrinsically linked to its finding that the applicant was not kidnapped (and hence not mistreated by his kidnappers).
The Court is not satisfied that the reasons of the Tribunal disclose an evident and intelligible justification for a number of its critical findings. In one sense, the Tribunal is the author of its own misfortune with the decision consisting of a point-by-point recitation of the evidence, culminating in a set of brief conclusory statements that are at least suggestive of a failure to intellectually engage with the evidence. Where conclusions do not directly flow from engagement with the evidence, it is more difficult to accept that the evidence was engaged with.
The Court accepts, of course, that it must consider the decision fairly and as a whole. Nevertheless, that acceptance does not warrant an exercise where it is asked to skip between isolated paragraphs to construct a contextual rationale where one may not exist. Such an approach would risk a decision falling into the abyss of deconstruction where each conclusory statement relies solely upon another equally conclusory statement, without ever landing upon a meaningful explanation. The Court accepts, however, that is not quite the case in this matter.
Reading the decision fairly and as a whole, the Court does not accept all of the findings impugned by the applicant lack an evident and intelligible justification. Importantly, however, there is an absence of explanation for the Tribunal’s rejection of the applicant’s claims that his complaints had drawn attention from the government and that he had received threatening telephone calls and text messages. Those were important claims and the Court is satisfied that the Tribunal’s failure to provide an explanation for their rejection leads to a conclusion that the Tribunal failed to engage in an active intellectual process directed towards those claims. The failure to do so constitutes a failure to carry out the required statutory task and gives rise to jurisdictional error.
Further, for the reasons given, the Court is satisfied that the errors were material.
CONCLUSION
The applicant has succeeded in his application.
Accordingly, the decision will be set aside and the matter will be remitted to the Administrative Review Tribunal for reconsideration.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 28 February 2025
CDD23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 276
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