CLT17 v Minister for Immigration

[2020] FCCA 1071

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLT17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1071

Catchwords:
MIGRATION – Visa – protection visa – whether Tribunal failed to consider corroborative evidence – whether decision illogical, irrational or unreasonable – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36 and 65

Migration Regulations 1994 (Cth), Sch.2

Cases cited:

WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

Applicant: CLT17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 206 of 2017

Judgment of: Judge Heffernan

Hearing date: 7 May 2019

Date of Last Submission: 7 May 2019

Delivered at: Adelaide

Delivered on: 6 May 2020

REPRESENTATION

Counsel for the Applicant: Mr P Barnes

Solicitors for the Applicant: Camatta Lempens

Counsel for the Respondents: Ms J Battiste

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant is to pay the costs of the first respondent as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 206 of 2017

CLT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review in relation to a decision of the Administrative Appeals Tribunal (‘the AAT’ or ‘the Tribunal’) dated 18 May 2007. That decision affirmed an earlier decision of a delegate of the Minister which refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (‘the Act’).  The delegate refused the application on 24 February 2016.

2. The applicant was represented by counsel before me and the matter proceeded on the basis of the Amended Application filed on 11 April 2019.  There was a single ground of application which was particularised at length.  The ground and particulars are as follows:

   “1.The determination of the Administrative Appeals Tribunal (“the Tribunal”) that the Applicant’s claims were not supported by the material before it including the spectrum of country information was illogical, and legally unreasonable.

   1.1The Applicant, a resident of Lagos, claimed to fear persecution and or other serious or substantial harm on the basis of his identity as a Christian teacher who had been the target of an attack for having proselytised to Muslim students during his placement in Borno State in Northern Nigeria.

   1.2In support of his claim, the Applicant provided to the Tribunal an article in the City Times dated 31 May 2013 (“the City Times article”) which contained facts corroborating his asylum claims, namely that he;

   1.2.1had been on a teaching assignment in Borno State in Northern Nigeria;

   1.2.2had been declared as wanted by Boko Haram for giving bibles to two Islamic students;

   1.2.3Boko Haram had vowed that he must be brought to justice according to Islamic Law; and

   1.2.4that these threats included a statement from Boko Haram that the applicant would be found no matter where he hid in Nigeria and would be brought to justice.

   1.3The Applicant also provided to the Tribunal an email from a colleague at the school of his former employment dated 25 October 2013 (“the work email”) which informed him that two students of the school had reported that members of Boko Haram had been asking whether the Applicant was at the school, and when he had last been seen.

   1.4The Tribunal found the City Times article and the work email to be inconsistent with country information but made no specific finding that they were not genuine.

   1.5The Tribunal then made an illogical finding that, even if the City Times article and the work email were genuine, that Boko Haram would not have an ongoing interest in the applicant.

   1.6The Applicant also produced his sister’s death certificate - not available at the time of the delegate's decision - which he said indicated that she had been targeted on account of his activities.

   1.7The Tribunal purported to ‘take the Applicant’s claims at their highest’ for the purpose of determining the review.

   1.8The review, therefore, proceeded on the basis of the truthfulness of the Applicant’s account, the genuineness of his documents and their significance, against a balanced assessment of the country information.

   1.9On this basis, the Tribunal’s findings that the Applicant would not face a real chance of persecution or a real risk of significant harm, were illogical, irrational, and legally unreasonable.”

Background

1. The applicant is a Nigerian citizen.  He arrived in Australia on a Training and Research (subclass 402) visa in July 2013.  He applied for a Protection (subclass 866) visa in September 2013.  He made that application on the basis that he was in fear of being killed by an Islamic group if he were to return to Nigeria.  In November 2013 he provided a statement to the Department.  He identified the Islamic group as being Boko Haram.  He described that group as being an Islamic militant group.  He repeated his claim that if he were to return to Nigeria he would be killed. 

2. When he was interviewed by the Department in September 2000 he expanded on his claims and he said that he was a Christian Yoruba teacher who was wanted by Boko Haram as a result of having given a Bible to two of his students.  This occurred at a school at which he was teaching in Bama in May 2013.  The students were both of the Islamic faith.  He claimed that the parents of the students accused him of proselytising.  One week later he was ambushed by seven people but said that he managed to escape.  He claims that those people identified him and ascertained his whereabouts in Lagos, where he lived.  He said that he had been informed since his arrival in Australia that his sister had been kidnapped and murdered.  During the course of the interview he provided the Department with a certified copy of an article of the ‘City Times’; a Nigerian newspaper.  The article was dated 31 May 2013.  It referred to him having given a Bible to two Islamic students and that he was wanted by Boko Haram.  The article reported that the group had vowed to bring him to justice under Islamic law.  It reported that a member of the group had said that the applicant would be brought to justice no matter where he hid in Nigeria.  He also provided the Department with two emails from September and October 2013 which stated that members of the group had been looking for him.  He provided the Department with other documents including a copy of his sister’s death certificate which indicated that she had died of a gunshot wound.

3. The applicant applied to the AAT within time on 24 March 2016.  Prior to the hearing before the AAT, a migration agent, acting on his behalf, provided it with written submissions, country information which it was said supported his claims, a statutory declaration sworn by the applicant, and various other documents.  The country information included reference to Boko Haram having captured various towns in Nigeria including the town where the applicant said and attempts had been made on his life and Bama where he had been teaching.  It also addressed the expansion of Boko Haram into Lagos.

4. The AAT hearing took place on 4 April 2017. In its Decision Record the AAT summarised the criteria for the grant of a Protection visa as set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) in a manner that was unexceptionable.

5. The AAT, in particular, referred to the fact that he had answered ‘no’ to the question of whether he had ever experienced harm in his country of origin.  He had responded to the question of what he feared may happen if he returned to Nigeria with the words “to be killed” and indicated that the reason he feared this was because he had “heard about what the Islamic group do”.[1]  The AAT accurately summarised the claims made before the delegate and the findings made.  It noted that the applicant told it that he was not able to provide proof that he had been employed as a teacher in Bama because the school had closed down due to threats from the Islamic group.  He claimed that he could only provide evidence that he had been employed as a teacher in Lagos.  He further claimed that his wife and children had moved in to live with his mother after the death of his sister.  He claimed that his wife had told him that she had seen strange people near their old home.

   [1]     Court Book (‘CB’), 264 [12].

6. The Tribunal had regard to country information from the DFAT Country Report Nigeria (10 February 2015) which dealt with the targeting of Christians by Boko Haram.  That information stated in part:

   “Both Christians and Muslims have faced violence at the hands of Boko Haram due to their religious beliefs.  Boko Haram opposes Christianity as well as less restrictive forms of Islam.  Credible local and international sources advise that Boko Haram attacks Muslim communities more frequently than Christian communities and that individual Muslims have been kidnapped and assassinated by Boko Haram.  It is considerably less common for Christians to be targeted individually … DFAT assesses that both Christians and Muslims face violence from Boko Haram when they remain domiciled in the north eastern states of Borno, Yobe and Adamawa, particularly if they are based close to the fighting.  Attacks on Christians by Boko Haram are opportunistic and infrequent.  Individual Christians are highly unlikely to be targeted.  Many Christians have moved internally within Nigeria to escape the risks posed by the Boko Haram insurgency.”[2]

   [2] CB, 265 [19].

7. The AAT also had regard to a report by the UK Home Office Country Information and Guidance, Nigeria: Fear of Boko Haram (June 2015).  That document stated in part:

   “In areas outside of the control of Boko Haram - the large majority of Nigeria - while there have been reports of sporadic bombings, there is no other evidence to indicate that the group has systematically targeted persons who oppose or are perceived as opposing its ideology.”[3]

   [3] CB, 266 [20].

8. A further source of country information to which the AAT had regard was prepared by the Research Directorate of the Immigration and Refugee Board of Canada (‘IRB’).  That document was entitled “The capacity of Boko Haram to pursue individuals who relocate to another region or city, such as Lagos”.  The Report indicated that the group had a greater capacity to pursue individuals in the North East region.  It quoted a source which claimed that the capacity of the group to track down an average citizen such as someone who fled one of the cities it had captured in 2014 or 2015 was doubtful even in the north-east.  The Report noted that the type of people the group might pursue and target were most likely to be relatively high status individuals such as local government area officials or religious elites.  Another report to which the IRB Report had regard stated that the types of individuals the group targeted included senior military and police officers and schoolteachers, especially those they deemed as promoting an education system which the group rejects.  The Report noted another source which suggested that the reach of the group was probably weak in the southern parts of the country because the South was predominantly Christian.  The principal ethnic group in Lagos is the Yaruba Christian group.  Further it noted a source which claimed that the group was almost entirely inactive in Lagos, only having carried out a single operation there.[4]

   [4]     CB, 266-268.

9. Noting that the Reports it had referred to were prepared in 2015 and early 2016 the AAT also had regard to more recent reports of violence perpetrated by Boko Haram.[5]  Research by the AAT indicated that there had been no attacks by the group in Lagos since June 2014.  The only activity involving the group in Lagos since that time related to the arrest of group members, some of whom had fled from other parts of Nigeria.[6]  It was satisfied that there had been no substantial change in the reach of the group since the DFAT Report of 2015.  It found that the conclusion in the country information that people living outside of the areas controlled by the group was still relevant and current.[7]

   [5]     CB, 268-269.

   [6] CB, 269 [31].

   [7] CB, 270 [32].

10. The Tribunal doubted the veracity of the applicant’s claim to have assisted the students by giving them a Bible.  This was particularly so because he did not make the claim at the time of his written application for the protection visa.  It regarded the answer “no” to the question of whether he had ever suffered harm in his country of origin as being unambiguous.  It also found it telling that he did not mention in his written application that he had ever worked in Bama state.[8]  Further, the AAT found that his description of how the group had attempted to harm him and how he had managed to escape from them to lack plausibility.  Specifically, it thought it was implausible that he could have outrun seven men on motorbikes who were shooting at him without suffering any injury particularly given his claim that the person walking next to him had been shot dead.[9]  The Tribunal also found that his account of how he got back to Lagos after the incident was lacking in detail and not credible.  It found that even if he was working in Bama state and accused of proselytising, he had embellished and exaggerated his account.  Further, having considered the newspaper article and the email from his school it concluded that those documents were inconsistent with country information which it accepted about the lack of targeting of individuals in the southern states.  The Tribunal considered that if the article was a genuine newspaper article, information in it had been provided by the applicant rather than a source from Boko Haram.  The AAT continued:

    “However, even if the tribunal accepted these two pieces of evidence are genuine, the tribunal does not accept Boko Haram would have an ongoing interest in the applicant.  The applicant says he cannot return even to Lagos because Boko Haram have spies everywhere.  The tribunal finds this is an exaggeration, and is not supported by the country information referred to above.  Given the findings by the IRB report, the tribunal finds that even if there were attempts in 2013 to find the applicant at his school in Lagos, it is too far-fetched to accept that in 2017 Boko Haram are still targeting and searching for the applicant, or that they would become aware of his return should he return in the foreseeable future.  The tribunal makes this finding even taking into account the claims that he was a Christian teacher who shared a Bible with Muslim students and ran away from an attempted assassination.  The tribunal does not accept these factors raise the applicant’s profile to such a level that Boko Haram have or would continue to search for him for years after the alleged event in 2013.

    The tribunal does not accept as reliable his claim that his sister was asked ‘where is David’ as she was kidnapped as he has no firsthand knowledge of this, nor did he provide any reliable witness evidence that this occurred.  The tribunal finds his claim about his sister is inconsistent with country information, and finds it far-fetched that a group that is not known for targeting individuals outside the north of Nigeria, except possibly for high profile individuals, would target the sister of a Christian teacher who temporarily worked in Bama state and had shared his Bible with Muslim students a year earlier.  Whilst the tribunal acknowledges country information indicating Boko Haram targets schoolteachers, the consensus from the country information referred to above is that Boko Haram are highly unlikely, and largely incapable, of targeting individuals outside the areas they control.  The tribunal finds that if the applicant’s sister was kidnapped and murdered, this was a tragic criminal act that is unrelated to the applicant.

    Even taking the applicant’s claims at their highest, accepting he was chased one day after school by Boko Haram operatives who shot at him from motorbikes, the tribunal does not accept Boko Haram would follow him to Lagos or have any ongoing interest in him.  Even taking all the claims cumulatively, as an active Christian, as a Christian teacher, someone who showed their Bible to Muslim students, someone accused of proselytising, and someone who has spent time in the West, the tribunal does not accept the applicant faces a real chance of persecution from Boko Haram should he return to his home area of Lagos in the reasonably foreseeable future.[10]

    [8] CB, 270 [35].

    [9] Ibid.

    [10] CB 271, [36]-[38].

Submissions

1. The applicant submitted that the conclusion reached by the AAT was illogical, irrational and/or not supported by logical grounds and accordingly jurisdictional error can be demonstrated.  That finding should be regarded as illogical firstly, because of the findings made by the AAT with respect to the corroborative material namely the email from his school and the newspaper article.  Secondly, on the basis of its assessment of the country information, it was submitted that the AAT expressed doubts as to the credibility of the corroborating material without making any specific findings about those doubts other than their alleged inconsistency with the country information.  Further, it was submitted that the AAT then proceeded to accept the documents as genuine for the purpose of the assessment of risk.  In the applicant’s submission, the AAT accepted the genuineness of the above material and yet illogically concluded that the applicant would not be of interest to Boko Haram.  This was illogical or irrational because it relied in doing so on the country information which it found to be inconsistent with the corroborative material.  In other words, it was not open to the Tribunal to accept the genuineness of the corroborative material and then use inconsistencies between that material and the country information to reject the claims of the applicant.

2. It was submitted that it is well-established that when corroborative material is introduced by an applicant, it must be subjected to careful scrutiny when considering the overall veracity and genuineness of a claim. WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs.[11]  The AAT had a duty to make findings as to the significance of the material in the context of the applicant’s claims taken as a whole.

   [11] [2004] FCAFC 74, [27].

3. In the applicant’s submission when the AAT purported to take the applicant’s claims at their highest for the purpose of determining the review, it accepted the genuineness of the article and the email.  Further, it notes that the Tribunal accepted the applicant’s account that he had been attacked and shot at by members of Boko Haram.  For that reason, the review proceeded on the basis of the truthfulness of the applicant’s account, the genuineness of his documents and their significance.  That being so, findings as to the applicant’s claims and the corroborative material did not logically support the conclusion reached by the AAT, that members of the organisation would not follow him to Lagos or have an ongoing interest in him.  It was submitted that there was nothing in the materials before the AAT which permitted it to arrive at a conclusion of a lack of ongoing interest in the applicant simply because of the passage of time.

1. With respect to the country information, the applicant submitted that the IRB report contained the qualification that its findings were made within the time constraints under which it was operating.  The Report stated that it was not conclusive as to any particular claim for refugee protection.[12]  Further, the applicant submits that the Tribunal had available to it a variety of other material which dealt with Boko Haram’s expansion to Lagos and attacks in Lagos by Boko Haram which post-dated the IRB report.  Further, it was submitted that the applicant’s agent provided multiple sources of information to the Tribunal to support the applicant’s contention the group was capable of attacks in Lagos.

   [12]   CB, 257.

2. The written submissions of the applicant analysed certain aspects of the country information relied on by the Tribunal in reaching its conclusion.[13]  It was submitted that whilst the Reports relied on by it had aspects that did not assist the applicant’s case, they were nonetheless insufficient to displace the highly corroborative nature of the evidence provided by him which supported his claims.  Having accepted the corroborative evidence, the only conclusion open to the AAT was that it necessarily displaced country information which did not support the applicant’s claims.  There was no rational basis on which the AAT could find that it was too far-fetched to accept that the group was still targeting and searching for the applicant in 2017 or that they would become aware of his return to Nigeria if that were to occur in the foreseeable future.

   [13] Applicant’s written submissions, [29]-[30].

3. It was submitted that jurisdictional error is demonstrated were a Tribunal fails to consider corroborative evidence that is directly relevant to an applicant’s claims.  The AAT had an obligation, which it failed to discharge, of considering the corroborative evidence as to past acts of persecution or harm when it made the assessment as to whether there was a real chance of harm in the future.  In other words, in the context of this matter the Tribunal failed to balance the effect of material that it had accepted against the country information.  That failure was unreasonable in the legal sense and reached by a process of reasoning which could not be regarded as rational.

4. The first respondent submitted that the conclusion of the AAT was open to it on the evidence and that the reasoning process was neither irrational nor lacking a logical foundation.  It could not be said that no decision-maker acting rationally logically or reasonably could not have made the same finding on the evidence before the Tribunal.  Further, the applicant bore the onus of demonstrating to the Court that any illogical or irrational reasoning was material to the ultimate decision in the sense that it deprived the appellant of a realistic possibility of a successful outcome.

5. In the submission of the first respondent, the submissions of the applicant are based on a misreading of the decision of the AAT.  Properly understood, the decision of the AAT does not show that it accepted the veracity of the information in the newspaper article or the email or any suggestion that the applicant had been tracked to Lagos.  If that submission is not accepted, the first respondent submits in the alternative that it was nonetheless open to the AAT even excepting the corroborating information and the claims of the applicant to find that there was no real risk that the applicant would be targeted, on the basis of his claimed fears, if he were to return to Lagos. 

Consideration

1. When reading the decision of the AAT taken as a whole, it can be seen that there are primary findings, expanded findings and the dispositive finding.  The expanded findings are those predicated on an “even if” and “even taking the applicant’s claims at their highest” basis.  The primary findings were that the AAT had doubts about the veracity of the claim to have come to the attention of Boko Haram in relation to the Bible incident;[14] that the description of how the group had attempted to harm him and how he had gotten away was implausible;[15] that his account of how he got back to Lagos was not credible; that the article from the Lagos times unlikely to be genuine;[16] that the email from his school in Lagos was similarly unlikely to be genuine; that the claim with respect to his sister being targeted by Boko Haram was not reliable and was unsupported by any corroborative evidence;[17] and that it did not accept that Boko Haram would follow the applicant to Lagos or have any ongoing interest in him.[18] It was those primary findings that formed the foundation for the dispositive finding made by the Tribunal that there was not a real chance that Boko Haram would target him for the claimed reasons and that accordingly he did not meet s 36(2)(a) of the Act.

   [14] CB, 270 [35].

   [15] Ibid.

   [16] Ibid, [36].

   [17] Ibid, 271 [37].

   [18] Ibid, [38].

2. It does not follow from the above that the Tribunal proceeded on the basis of the truthfulness of the applicant’s account and the genuineness of his documents and their significance against a balanced assessment of the country information.  I do not accept the applicant’s submission to the contrary.  That submission is predicated on the assumption that when the Tribunal employed “even if” reasoning in its’ Decision Record, it was no longer relying on the credit and implausibility findings it made with respect to its primary findings and indeed, no longer relying on the primary findings themselves.  I am not satisfied that a fair reading of the reasons demonstrates that this is what the Tribunal did.  To the contrary, those parts of the Decision Record which proceed on an “even if” form of reasoning are hypothetical and are intended to underscore the confidence the Tribunal had in its primary findings.  Those sentences which employ “even if” reasoning could properly be read as including the words “which I do not accept…” without losing the intended meaning of the decision-maker. 

3. The point can be illustrated easily enough.  For example, the Tribunal had doubts about the veracity of the newspaper article and the email from the applicant’s school in Lagos.  It concluded that “even if” it accepted those two pieces of evidence were genuine, it did not accept that Boko Haram would have an ongoing interest in the applicant.  It relied on country information to reach that conclusion.  That is an example of the Tribunal making what I have referred to as an expanded finding.  In doing so it was making two points.  Firstly, that it did not accept those two documents were genuine and secondly, on the basis of the country information which it accepted and on which it relied, the genuineness of those documents would not be sufficient to alter its conclusion. 

4. When the decision-maker used the expression “Even taking the applicant’s claims at their highest and accepting he was chased one day ...”[19] she was once again emphasising that her findings had not taken the applicant’s claims at their highest and that she had already rejected them.  The discussion in the relevant paragraph is an emphatic rejection of the applicant’s claims to satisfy the refugee criterion.  The Tribunal did not accept his claims but had it done so, such a finding would not have altered the outcome given the country information which it accepted.  It is well-established that the determination as to what, if any, country information the Tribunal accepts, is a matter for the Tribunal as part of its fact finding function and it is for the Tribunal to give it appropriate weight.[20]  Any assessment of the accuracy of the country information is of course part of that process and it is not an error of law, let alone jurisdictional error, for it to rely on country information that is untrue.[21]

   [19] CB, 271 [38].

   [20] Ibid, [11].

   [21]   NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 [10].

5. As submitted by Ms Battiste for the first respondent, when summarising all of the applicant’s cumulative claims[22] no reference was made to any purported evidence of the applicant being tracked in Lagos.  That was because a correct reading of the Decision Record shows that it did not accept that claim.  It must be remembered that the Tribunal found that Boko Haram was primarily active in the North East of Nigeria and that people outside areas they controlled were highly unlikely to be targeted.[23] 

   [22] CB, 271 [38].

   [23] CB, 269–270 [32].

6. As submitted by the first respondent, by way of illustrating the matters I have referred to above in a different way, the applicant’s evidence that he had in fact been targeted in Lagos in 2013 is not inconsistent with the finding based on country information that such an occurrence was highly unlikely.  Contrary to the submission of the applicant, the Tribunal did not find that there was no evidence of the ability of Boko Haram to target as far south as Lagos and nor did it rely on such a conclusion. 

7. The qualification to the observation I have made above with respect to the assessment of country information being a matter for the Tribunal is that the failure to give adequate weight to a factor of great importance may reveal the decision to be manifestly unreasonable on the basis that no reasonable person could have come to it.[24]  In this matter, that cannot be said with respect to the weight given to the country information on which the Tribunal relied or its rejection of the applicant’s claims.

   [24]   Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [72].

8. I do not accept the submission by the applicant that the corroborative information was ignored.

9. In reaching that conclusion, I have considered what was said by the Full Court in WAIJ.[25]  In that matter, the Tribunal disregarded certain documents which were said to be corroborative of the applicant’s claims because of the misgivings the decision-maker had with the evidence of the applicant.  The Court acknowledged that there were some cases where comprehensive findings of dishonesty or untruthfulness may negate allegedly corroborative material.[26]  Further, the Court recognised that a decision-maker may find material to be worthless on probative grounds, in which case it would be open to a Tribunal to exclude it from consideration when assessing the credibility of the claims.  What is not open to a Tribunal is to decline to consider allegedly corroborative material in an applicant’s claims merely because it reached a view that it was unlikely that the events described by an applicant occurred.  To do so would be to ignore relevant material.  In WAIJ, the Court found that a Tribunal is bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility.[27]  A failure to do so would amount to a determination not carried out according to law and accordingly, affected by jurisdictional error.  I make two observations about the application of that authority to this case.  Firstly, as I have noted above, the Tribunal in this matter did not decline to have regard to the allegedly corroborative material.  It clearly considered it in light of the country information, quite apart from any assessment of the credibility of the applicant’s claims.  Further, the Tribunal then proceeded to employ the conditional, “even if” reasoning I have referred to above to consider the potential impact of that evidence in light of both the evidence of the applicant and the country information which it accepted.  That was an expanded finding.  It is at that point in the reasons that the Tribunal rejects as an exaggeration the claim of the applicant that it would be unsafe for him to return even to Lagos.  In my view to read the decision in the manner urged upon the Court by the applicant would be an example of scrutinising it with an eye keenly attuned to the perception of error. 

   [25]   Op cit.

   [26]   Ibid, [27].

   [27]   Ibid.

10. I am not satisfied that it has been demonstrated that there was no logical foundation for the findings of the Tribunal either as to the applicant’s credibility claims generally or with respect to the corroborative information in particular. 

11. The principles of irrationality and illogicality are intertwined with the reasoning underpinning the principles of unreasonableness:

    “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.”[28]

    [28]   Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 [130].

12. It has also been observed that in order for an administrative decision to be impugned on the basis of illogicality or irrationality, the decision must be extremely illogical or irrational:

    “… the ground of “engaging in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds” is to be taken to refer to extreme illogicality or irrationality, 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.”[29]

    [29]   Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99| [148] ; see also Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496.

13. That could not be said to be the case about the process of reasoning or the findings adopted by the Tribunal in this matter.

14. The findings of the Tribunal were open on the evidence before it and a fair reading of the Decision Record shows them to have been made in a considered, rational and logical way.

15. Jurisdictional error has not been demonstrated and the application must be dismissed.

16. I make the orders to be found the beginning of these reasons.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate:

Date: 6 May 2020