CTC17 v Minister for Immigration and Border Protection

Case •

[2022] FedCFamC2G 500

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CTC17 v Minister for Immigration and Border Protection [2022] FedCFamC2G 500

File number(s): SYG 1948 of 2017
Judgment of: JUDGE EGAN
Date of judgment: 29 June 2022
Catchwords: MIGRATION – Authority did intellectually engage with the applicant’s arguments put in material which was considered by it -  Authority did relevantly have regard to country information at large as well as information relied upon by the applicant – no jurisdictional error established – Application dismissed.
Legislation: Migration Act 1958 (Cth) ss. 5H, 5H(1), 5J, 36(2)(a), 36(2)(aa), 473CB.
Cases cited: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1
Tsvetnenko v United States [2019] FCAFC 74
Division: Division 2 General Federal Law
Number of paragraphs: 28
Date of last submission/s: 21 June 2022
Date of hearing: 21 June 2022
Place Brisbane
Counsel for the Applicant: Mr G Foster
Solicitor for the Applicant: Sentil Solicitors
Solicitor for the First Respondent: Minter Ellison
Solicitor for the Second Respondent: Submitting appearance save as to costs

ORDERS

SYG 1948 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

CTC17

Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE EGAN

DATE OF ORDER:

29 JUNE 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2.The Amended Application for Review filed on 12 May 2022 be dismissed.

3.The Applicant pay the First Respondent’s costs of and incidental to the application for review, fixed in the amount $6,000.00.

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 Egan

Introduction

  1. The applicant is a male person of Sri Lankan citizenship who arrived on the Cocos Islands on 21 October 2012 as an unauthorised maritime arrival.

  2. On 10 February 2016, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV).

  3. On 7 October 2016, a delegate of the Minister refused to grant the visa. The matter was referred to the Immigration Assessment Authority (the Authority) for review.

    Consideration of Applicant’s Claims

  4. At [4] of its reasons, the Authority recorded that it had had regard to the material referred to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (the Act).

  5. At [8] of its reasons, the Authority recorded the applicant’s claims for protection as follows:

    “[8]     The applicant's claims can be summarised as follows:

    •He is a Tamil Hindu who was born in the Batticaloa district in the Eastern Province of Sri Lanka. He lived all his life in the same village and his parents and siblings continue to reside in the family home.

    •His family have all been long-time supporters of the TNA. None of his family have had any involvement with the Liberation Tigers of Tamil Eelam {LTTE) or any other paramilitary organisations.

    •In 2012, a TNA candidate asked him to assist with the upcoming Provincial Council elections. He joined other supporters travelling to villages, canvasing door-to-door for votes, putting up posters, distributing fliers, gathering crowds and doing other similar election work.

    •In August 2012, he was stopped on the road by some men. They told him that he should not support the candidate or the TNA and that they would kill him if he continued to do so. He believes these men were Tamil paramilitary or government men.  He ignored the threats and then unknown people telephoned him and threatened him to stop supporting the TNA.

    •The TNA candidate won the election in September 2012. Two or three days after the election, people came to the applicant's house looking for him. He was not at home so they told his mother that they would kill him if they found him.

    •He stayed in hiding at his aunt's house and then later at his uncle's house for about a month before he came to Australia.

    •Since he came to Australia, Tamil paramilitary groups, the Criminal Investigation Division {CID) and the SLA have been to his home many times trying to find him. He has also heard that people from his boat were returned to Sri Lanka and have given his name to the CID.

    •At the interview, the applicant claimed that in 2012, his brother's wife passed away. His brother returned to live with the applicant and his parents, leaving his home empty. The SLA occupied the house and when the brother asked for it back, the SLA assaulted him. The applicant then went and asked for the house to be returned. The SLA called him to meet them and assaulted him as well.  He thinks this was sometime around September 2012. He believes the SLA will still be angry with him and harm him because of this.”

  6. At [9] of its reasons, the Authority recorded what was required to be satisfied for a person to be considered a refugee under the provisions of s. 5H(1) of the Act.

  7. At [10] of its reasons, the Authority recorded what constituted a well-founded fear of persecution under s. 5J of the Act.

  8. At [49] of its reasons, the Authority found that the applicant did not fall under the definition of a refugee under s. 5H of the Act so as to warrant protection under the provisions of s. 36(2)(a) of the Act.

  9. At [57] of its reasons, the Authority found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm so as to warrant a finding that the applicant ought to be granted complimentary protection under the provisions of s. 36(2)(aa) of the Act.

  10. On 25 May 2017, the Authority affirmed the decision of the delegate.

  11. On 22 June 2016, the applicant filed an Originating Application for Review of the decision of the Authority. At the time of the hearing before the Court, the applicant relied upon the grounds of review as set out in an Amended Application for Review filed on 12 May 2022. The grounds of review were relevantly as follows:

    “Ground-1

    1.The IAA erred when it did not accept unknown men have returned to the home and/or made any further enquiries in relation to him at any time since the September 2012 incident.

    Particulars

    i.[18];

    ii.The Applicant’s claims included:

    a.After provincial council elections several TNA party members and supporters were  targeted  by Tamil groups  (Karuna group, Pillayan  group)  operating  in the Eastern province [13][CB60];

    b. Members of the Tamil paramilitary groups had begun to come to my home in search of me. I was  not  at  home  when these paramilitary  group members had gone in search of me [14) [CB60];

    c.One night approximately  2/3 days after the elections,  while I was staying  at my  father's  sister's  (Theivalamar's)  house  which  was  close  to  my  parent's residence  paramilitary  group  memb_ers  had  gone  to  my  parent's  house  in search  of  me. The  paramilitary  group  members  had  told  my  mother  that despite having been warned I had worked for the TNA during election period and would be shot and killed if they happen to see me [15) [CB60];

    d.I learned  that members  of Tamil paramilitary  groups, CID and the army had gone  to my parent's  house  in  search  of me many  times  after  I  had  left Sri Lanka [CB61].

    iii. The IAA considered the applicant’s claims that unknown persons have continued to search for him many times since he left Sri Lanka [18] [CB188]:

    a.   The IAA was prepared to accept the Applicant's home was visited once (by unknown people) [18] [CB188];

    b.   The IAA erred when it stated 'I take into account that his family was only visited once in the six weeks between the election and his departure' [18] [CB188].  While the Applicant specified one visit to his parent's house by paramilitary group members one night 2/3 days after the elections, the Applicant had claimed 'Members of the Tamil paramilitary groups had begun to come to my home in search of me.  I was not at home when these paramilitary group members had gone in search of me' [CB60] which indicates there was a course of searching and accordingly more than a single visit to his home (which appears to be the same residence in Sakkadatha Rd Batticaloa (see [CB3] [CB6] and [CB13] as his parents' residence);  

    c.   The IAA erred when it stated There is nothing in his, evidence that indicates the unknown men asked about his whereabouts' [18] [CB188], which must be clearly incorrect if the unknown men were actually searching for him and visited his parents' home and spoke to the Applicant's mother;

    d.   The IAA erred when it stated There is nothing in his evidence that indicates the unknown men ... visited ... family members' [18] [CB188], which must be clearly incorrect when they visited his home and spoke to his mother;

    e.   The IAA erred when it stated ‘There is no evidence or information to indicate why they would suddenly visit his house "many times" only after he had departed Sri Lanka.' [18] [CB188].  This statement depends on the interpretation of the Applicant's history that there was only one visit to his parents' home, when this was not the case in light of the Applicant's claim 'Members of the Tamil paramilitary groups had begun to come to my home in search of me.

    iv.Accordingly, the IAA misunderstood the material before it which was material to the Applicant’s claims, and came to unreasonable findings thereby committing jurisdictional

    Ground 2:

    2.The IAA erred when it did not consider or properly consider the material provided by the Applicant’s representative on 27/7/2016.

    Particulars:

    i.[CB107]-[CB138]:

    ii.The Delegate referred to various articles including

    a.UNHCR Guidelines [CB190],

    b.OHCHR ‘Report of the OHCHR Investigation on Sri Lanka OISL ‘[CB191];

    c.Amnesty International report 2015-16 [CB191];

    d.Asylum Research Consultancy 1 March 2016 [CB191];

    e.UKHO report 28 August 2014 [CB191];

    f.DFAT 18 December 2015 [CB191];

    g.Human Rights Watch report 2016 [CB192];

    h.USDOS 13 April 2016;

    iii.The Applicant’s representatives provided a synopsis of reports including:

    a.Tamilnet 38235 [CB107];

    b.News.yahoo [CB108];

    c.Refworld.org [CB108];

    d.IRIN [CB109];

    e.Sunday Leader [CB111];

    f.SRILANKAMIRROR [CB115]

    iv.The IAA referred to an article [CB192] (provided by the Applicant's representative) from Tamilnet 5 March 2015 [CB107), yet the IAA failed to mention other reports provided by the Applicant's representative, and so concluded [CB192] 'Taking all of the referred information into account, I am satisfied that the situation for Tamils in Sri Lanka has significantly improved and continues to do so. There is nothing in the referred information that indicates the situation is stagnating or getting worse for Tamils in any area of Sri Lanka.  I am satisfied that the new government is taking steps to address past discrimination and violence and that Tamils do not face a real chance of serious harm on the basis of ethnicity alone. I also take into account that the referred materials do not indicate that young Tamil males face a real chance of serious harm on the basis of age and ethnicity alone.'

    v.The IAA erred when it failed to address the publications identified at iiib-f above, which raised serious examples of Tamil men and women being harmed in Sri Lanka in circumstances which challenge the views expounded in reports identified at iia-h above, such failure indicating the IAA ignored relevant material before it and/or took into account material that was irrelevant and/or placed too much weight on material before it contrary to the Applicant's claims.

    vi.It should be inferred on the balance of probabilities that the IAA did not consider the publications identified at iiib-f above;

    The IAA thereby committed jurisdictional error by failing in the discharge of its exact function according to law, being to review the delegate's decision pursuant to S 473CC of the Migration Act.”

    Grounds of Review

  12. Ground 1 of the Amended Application for Review was a claim that the Authority had erred by not accepting that unknown men had returned to the applicant’s home, or that they had made further enquiries in relation to the applicant after an incident in September 2012. In that regard, Counsel for the applicant took the Court to a statutory declaration made by the applicant on 21 October 2012, paragraphs 13 – 15 of which were relevantly as follows: [1]

    “13. After provincial council elections several TNA party members and supporter were targeted by Tamil paramilitary groups (Karuna group, Pillayan group) operating in the Eastern province.

    14. Members of Tamil paramilitary groups had begun to come to my home in search of me. I was not at home when these paramilitary group members had gone in search of me.  

    15.One night approximately 2/3 days after the elections, while I was staying at my father's sister's (Theivamalar's) house which was close to my parents' residence paramilitary group members had gone to my parent's house in search of me. The paramilitary group members had told my mother that despite having been warned I had worked for the TN/\ during election period and would be shot and killed if they happen to see me.”

    [1]           PP. 59 – 60 of Court Book (CB) – Exhibit 1.

  13. It was submitted on behalf of the applicant that in light of the contents of paragraphs 13 – 15 of the applicant’s said statutory declaration, the Authority was wrong when it held, at [18] of its reasons, as follows:

    “[18] … There is nothing in his evidence that indicates the unknown men asked about his whereabouts, waited for his return or visited any of his other friends or family members.”

  14. It was submitted on behalf of the applicant that the finding by the Authority, at [18] of its reasons, that the applicant’s family was only visited once in the six weeks between the election and the applicant’s departure was not open to the Authority having regard to the contents of paragraph 14 of the statutory declaration. It was submitted on behalf of the first respondent that whilst it could be argued that the contents of paragraph 14 indicated that there was more than one occasion on which unknown persons had attended at the applicant’s home looking for him, it was nevertheless open to the Authority to make the findings it had, because the applicant’s written claims and his evidence at the protection visa interview only referred to one alleged incident whereby members of paramilitary groups had gone to the applicant’s home in search of him.

  15. The Court accepts the submissions made on behalf of the first respondent. Further, particulars (c) and (d) of Ground 1 were misconceived. The applicant in his statutory declaration only identified one occasion when any paramilitary group member had attended at the applicant’s home – namely on the occasion referred to in paragraph 15 when it was said that some people had attended at the applicant’s home and had spoken to his mother. The Authority found that there was nothing in the applicant’s evidence that indicated that anyone had asked about the applicant’s whereabouts; had waited for the applicant to return to the home; or had visited any of the applicant’s other friends or family members. Those findings were factually correct. For example, the fact that the applicant claimed that a warning was given does not equate to a search for the applicant being undertaken. Particulars (c) and (d) do not address the Authority’s specific findings, but rather proceed on the assumption that such findings were erroneous. That was not so.

  16. As to particular (e), the Court finds that it was open to the Authority to find that there was no evidence or information to indicate why people would suddenly visit his house many times after he had departed Sri Lanka for Australia. It was not unreasonable for the Authority to make the findings it did. It could not be said that the decision of the Authority was a decision which no reasonable person could have arrived at. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, Kiefel CJ at [10] and [11] explained that:

    “[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.

    [11] Statements such as that made in the Wednesbury Case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies”

  17. In Tsvetnenko v United States [2019] FCAFC 74, Besank, Banks-Smith and Colvin JJ at [84] – [85] said:

    “[84] … unreasonableness is not demonstrated merely by an error in reasoning, even an error that may be characterised as grave. Where the claim of unreasonableness is based on alleged unreasonable reasoning it must be demonstrated that the reasons fail to provide an intelligible justification for the result.

    [85] The distinction is important because review for legal unreasonableness concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision-making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness.”

  18. There is no merit to Ground 1 of the Amended Application for Review.

  19. Ground 2 was a claim that the Authority had erred by failing to consider, or properly consider, material provided by the applicant’s representative on 27 July 2016. Such information included links to newspaper articles which included stories about alleged human rights abuse in Sri Lanka. [2] There is no merit to such claim.

    [2]           CB PP. 107 – 137.            

  20. First, the Authority did mention in its reasons one of the links provided by the applicant’s representative which was referred to in the email sent to the Department. [3]

    [3]           [35] of the Reasons of the Authority – CB P. 192.

  21. Second, the Authority at [19] – [43] inclusive of its reasons had regard to a substantial body of country information from such sources as the UK Home Office, The United States Department of State, the United Nations High Commissioner for Refugees, Amnesty International, DFAT and others. Eighteen (18) references to sources of country information were relevantly footnoted by the Authority. It could not be said that the Authority failed to have regard to that country information, or that it relied upon that country information which it considered most reliable. That the Authority only referred to one source of country information provided by the applicant was of no moment. The Authority was not required to adopt as factually relevant any particular source of country information provided by the applicant. The Authority was entitled to place weight upon such information as was considered pertinent by it.

  1. In any event, the Authority did intellectually engage with the submissions made on behalf of the applicant by specifically referring to the information relied upon by the applicant. The Authority found as follows:

    “[30] I have considered information that since Sri Lanka obtained independence in 1948, the government has increasingly favoured the Sinhalese community while marginalising and alienating the Tamil minority. There were outbreaks of communal violence and these in turn led to the radicalisation of some sections of the Tamil community, which in turn led to the establishment of the LTTE and the civil conflict. Following the defeat of the LTTE in 2009, the Sinhalese majority celebrated in a triumphalist way and although it embarked on a program of rebuilding and development, this was again see by the Tamil community as favouring the Sinhalese, including through progressive "Sinhalisation" of Tamil areas.

    [31] There is some information that claims that even after the end of the conflict Tamils remain at risk of arrest and detention. Amnesty International notes reports of arrests and detention of Tamils suspected of links to the LTTE, human rights defenders, and other activists. There were also reports of harassment and threats made against people involved in activism, and incidents of harassment reported by religious minorities (Muslims and Christians).8 The Asylum Research Consultancy (ARC) report of 1 March 2016 also notes that as at March 2015, there was no evidence that state apparatuses in the North and East of Sri Lanka were transforming their attitudes towards civil society. Policing and surveillance remained in place and there was regular and intimidating questioning of political activists in these areas.9 The applicant's post-interview submissions also contain a comprehensive bundle of media reports and other information that suggest that Tamils who are suspected of links to the LTTE, pro-separatist/anti-government activity, advocating investigation of human rights abuses or bringing the government into international disrepute may face harm from the police and security forces. However, while I take all of this information into account, I have already found that the applicant will not be imputed with any adverse profile, including as a result of any family association. I have found that there is no evidence that the applicant has or intends to engage in any protests, activism or pro-LTTE/pro-Tamil activities. There are no claims, and there is no evidence before me that the applicant has or intends to be involved in any other activities of the type described above.

    …

    [35] The applicant's post-interview submissions refer to a report from TamilNet, dated 5 March 2016, that the Sri Lankan government is reintroducing registration requirements for households in the Batticaloa district.14 According to this report, the Sri Lankan authorities are also conducting individual monitoring of households within the district. I note from this report however that those being monitored appear to be former LTTE cadre who have been released after prolonged detention and rehabilitation.  On 24 May 2016, the Department published a report that considers the implications of this recommencement.15 This report notes that the registration process is not limited to Tamils and in fact covers all communities in the district. It is also being undertaken in other districts of Sri Lanka. Having considered this information, I am satisfied that the recommencement of registration affects all residents equally and does not indicate that Tamils face any additional discrimination or imposition in relation to this issue.

    [36] Taking all of the referred information into account, I am satisfied that the situation for Tamils in Sri Lanka has significantly improved and continues to do so.  There is nothing in the referred information that indicates the situation is stagnating or getting worse for Tamils in any area of Sri Lanka. I am satisfied that the new government is taking steps to address past discrimination and violence and that Tamils do not face a real chance of serious harm on the basis of ethnicity alone.  I also take into account that the referred materials do not indicate that young Tamil males face a real chance of serious harm on the basis of age and ethnicity alone.

    …

    [40] I have taken into account media reports and other information in the referred materials (including the applicant's post-interview submissions) that relates to the arrest and detention of returning Tamils. All of these reports involve returnees who were known or suspected LTTE cadre or had another adverse profile with the Sri Lankan authorities. The most recent update from the ARC is also consistent with this observation.”

  2. The Court finds that the Authority did appropriately consider all relevant claims squarely made to it based upon the material before it. As was said by Black CJ, French and Selway JJ in Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [58], [61] and [68]:

    “[58] The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

    …

    [61] In STYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 705, Selway J questioned whether the comments made by Merkel J in Paramananthan accurately reflected the position. He said (at [15]):

    ‘Whether or not those comments were correct when they were made, they may not now accurately reflect the jurisdiction of this Court. That jurisdiction is limited to the identification of jurisdictional errors. The question in this context is whether the Tribunal has made a jurisdictional error in not considering a claim that has not been made. In my view it does not make a jurisdictional error in such circumstances, providing, of course, that it correctly identifies the legal issues relevant to the claim that is made: contrast the majority and minority reasons in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112.’

    We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it.  The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it. 

    …

    [68] Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov.  A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made.  The claim must emerge clearly from the materials before the Tribunal.  In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred.  This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal.  It did not, however, constitute jurisdictional error in the sense earlier discussed.  It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction”

  3. Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:

    “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

    “[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

    …

    [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

  4. There is no merit to Ground 2 of the Amended Application for Review.

  5. The applicant has failed to establish jurisdictional error on the part of the Authority.

  6. The Amended Application for Review is without merit and is dismissed.

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

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       29 June 2022


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Cases Citing This Decision

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Cases Cited

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Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Tsvetnenko v United States of America [2019] FCAFC 74
STYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 705