CTV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 450

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 450

File number(s):	ADG 213 of 2018
Judgment of:	JUDGE EGAN
Date of judgment:	10 March 2021
Catchwords:	MIGRATION – Application for Safe Haven Enterprise Visa – adverse credibility findings – no basis for claims that Authority acted illogically or unreasonably – no jurisdictional error established – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 473CB, 473DD(b)(i), 473DD(b)(ii).
Cases cited:	AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007. SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210. Minister for Immigration and Border Protection v SZVFW [2018] HCA 30. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
Number of paragraphs:	30
Date of last submission/s:	4 March 2021
Date of hearing:	4 March 2021
Place:	Brisbane
Applicant:	The Applicant appeared in person on his own behalf
Solicitor for the First Respondent:	Mr Ellison of AGS
Second Respondent:	Submitting appearance save as to costs

Table of Corrections
16 July 2021	In the Orders, the words “Administrative Appeals Tribunal” as the name of the Second Respondent has been replaced with “Immigration Assessment Authority”.

ORDERS

ADG 213 of 2018

BETWEEN:

CTV18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	10 MARCH 2021

IT IS ORDERED THAT:

1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The Application for Review filed on 28 May 2018 is dismissed. 

3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE EGAN

1. The applicant is a citizen of Sri Lanka who arrived in the Cocos Islands as an unlawful maritime arrival on 3 November 2012.

2. After the lifting of the statutory bar on 7 March 2016, the applicant applied for a Safe Haven Enterprise Visa (SHEV).

3. The applicant attended a protection visa interview with a departmental officer on 11 July 2017, at which time oral submissions were made. Post interview written submissions were also made. On 26 July 2017, a delegate of the Minister refused to grant the visa.

4. On 31 July 2017, the matter was referred to the Immigration Assessment Authority (‘the Authority’) for review.

5. On 27 August 2017, the applicant’s representative provided a submission to the Authority which contained new information.

6. On 30 April 2018, the Authority affirmed the decision of the delegate.

7. On 28 May 2018, the applicant’s then lawyers filed an Originating Application for Review, the grounds of which were as follows:

   “1. The decision of the Immigration Assessment authority (“IAA”) was affected by jurisdictional error by applying an unreasonable or illogical process of reasoning when considering whether to have regard to the additional information regarding the death of the applicant’s child pursuant to s473DD, in that:

   a. Pursuant to s473DD, the IAA rejected new information provided by the applicant regarding the death of his child. The IAA accepted that the applicant’s daughter had died following the primary decision from a severe heart condition, and that in 2016 the doctors had instructed the applicant to return to Sri Lanka due to his daughter’s condition. However, the IAA found that this new information did not have any bearing on the applicant’s claims for protection.

   b. The credibility and plausibility of the applicant’s claims was a material issue in the IAA’s deliberations. In particular, the IAA rejected as contrived the Applicant’s claims that he was detained and interrogated shortly prior to his departure from Sri Lanka, and was released on the condition of regular reporting. This claim is critical to establishing the current profile of the applicant and risk of persecution. In rejecting these claims, the IAA found that the applicant’s last adverse experiences with the Sri Lankan authorities occurred in 2010.

   c. The applicant’s fear of returning to Sri Lanka despite being advised by doctors that his infant daughter was dying has bearing on the applicant’s claims for protection on the basis that is relevant to the plausibility of his claims.”

8. Section 473DD of the Migration Act 1958 (Cth) (‘the Act’) relevantly provided as follows:

   “473DD Considering new information in exceptional circumstances

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a)  the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”

9. At [3] of its reasons, the Authority recorded that it had had regard to the material provided by the Secretary of the Department pursuant to the provisions of s. 473CB of the Act. It specifically recorded that such material included a post-interview submission sent by the applicant’s representative and dated 25 July 2017.

10. At [13] of its reasons, the applicant’s claims for protection were summarised by the Authority as follows:

    ·     “He is of Tamil ethnicity, a Catholic by religion and is originally from Mannar district, Northern Province of Sri Lanka;

    ·     When he was a child, his family had to move constantly due to the war, and were displaced for most of the time;

    ·     In 2007, the LTTE came to his village and, following a round up, forcefully took him and 5 other boys to their camp in a forest area where he was initially locked up with the other boys in a room for 20 days and indoctrinated with LTTE ideologies;

    ·     He was then moved to different areas of deep forest, which were part of the LTTE recruitment camp for LTTE fighters, having been given physical exercises to improve his fitness;

    ·     He stayed in the LTTE recruitment camp for four to five months before escaping with a group of 6 or 7 others;

    ·     After escaping, he was able to reach his home. Whilst he was taken by the LTTE, his parents made a complaint to the Human Rights Commission, but nothing happened as a result;

    ·     After he returned home the Criminal Investigation Division (CID), found out that he had come back from an LTTE training camp and came to his house 5 or 6 times requiring him to attend their camp at Illupillupakulam, which he attended under threat of being shot;

    ·     At the CID camp he was interrogated about his LTTE involvement and training. He maintained that he was forcibly taken and forcibly trained by the LTTE, and that he had only been at their camp for 4 or 5 moths and had not undertaken any weapons training. However, the CID said that they didn’t believe him and that they knew that he had undertaken LTTE training, and beat him during the interrogations, often with a wire.;

    ·     Towards the end of 2007 his family were displaced from their village, having to move to Nanattan, a displaced persons camp run by the UNHCR, to escape the violence;

    ·     He lived in the displacement camp until 2010 and during that period the CID would either take him from the camp or make him go to their camp in Illupillupakulam for interrogation about his LTTE training and about suspected LTTE fighting involvement;

    ·     He and others in the Nanattan camp who were being interrogated were required to sign a roll call for the Sri Lankan army (SLA) or CID to show which suspects were registered at displacement camp;

    ·     On one of the days that he left the camp to work so he could supplement the supplies they were given, he saw the CID or army beat and then shot two boys within 100 metres of himself;

    ·     About a year or two after his forced training with the LTTE, his younger brother was also forced to train with the LTTE but was able to return home;

    ·     In May 2010 he repatriated back to his home village, but because their house was totally destroyed, they had to live in shelters they made from material provided to them by the NGOs for an extended period of time;

    ·     The military in his village came to their house seeking information about any family members who joined the LTTE and if any family members died while fighting for the LTTE. When they asked if he had any training, he said that he was forced to do so;

    ·     About a month later the military asked him to go to their place where he was again interrogated and beaten with metal rods and sticks;

    ·     He wanted to leave the country but was too scared to travel to a passport office to obtain a passport as it was far away and the army and CID were keeping a close watch on him and others that had signed the roll call, having told them they were not allowed to go anywhere and had to attend their camp whenever they were called;

    ·     He wanted to leave his village but it was too difficult for some years, with the CID being very active and people were dying, there still being explosions from fighting. His uncle was killed in a shell attack while travelling on a bus;

    ·     Even after he moved from his village, having married in 2011 and moved to his wife’s village, the harassment did not stop; he was required by the CID/Army to report to them, and fearing that because of his training he would be killed and having been continually harassed over many years, he departed Sri Lanka by boat to Australia in October 2012.

    ·     He fears that if returned to Sri Lanka he will be subjected to serious harm at the hands of the CID or SLA because:

    i     He has been targeted by them many times in the past;

    ii   The CID would be angry due to his evasion of them in the past and the fact that he has been in Australia for many years and will think that he has been involved with reviving the LTTE;

    iii    He will be easily recognisable and identified because the army and authorities remain the same as before;

    ·     Even though the Sri Lankan government has changed he still fears the authorities because he is a Tamil; the police and army are dominated by Sinhalese people, and they even control some of the fields on his family’s farms;

    ·     There are still murders being carried out by the CID especially against people who are linked to the LTTE like himself, and they are still being targeted;

    ·     He recently heard on the news that a large number of people were arrested and the problems are still the same for Tamil people;

    ·     He fears that he will be arrested and found by the army, and knows of many people who are returned having been sent to jail, and that once in jail, their pursuers know about them as the army are all throughout the country;

    ·     He would not be able to safely relocate to other parts of Sri Lanka as he would be found by the army, and other authorities in the areas will be suspicious of his past, and upon checking his background, will find out the he is wanted by the CID, and he will be informed on;

    ·     He cannot live in a majority Sinhalese area as he will be interrogated as to why he is there and, once the truth is found out about him, he will be shot.

    ·     Since he has been in Australia the CID or Army have enquired with his wife about his whereabouts, and having ascertained that he had left, they have approached her again and questioned her if he had left to revive the LTTE, which she denied. They last visited his wife at their family home in 2015;

    ·     His family informed him that as recently as May 2017 CID officers appeared at his house in search of him and his wife to see if he had returned to Sri Lanka; however only his mother was home as his wife no longer lives there as she felt unsafe there due to previous visits from the authorities. His mother said that the people who came to the house were the same officers who use to harass him when he lived there and she believes they are with the CID;

    ·     This ongoing harassment of his family and the most recent CID visit in May 2017 demonstrates that he is still of interest to the authorities, that he is still on their list and that former LTTE trainees are still being targeted;

    ·     He had two maternal uncles who were cadres in the LTTE and fought in the final stages of the civil war, S and AR, who were killed in combat in 2007 and 2009 respectively, and fears that his family links to them may elevate his profile as a person of interest to Sri Lankan authorities.”

    The Authority’s Consideration of the Applicant’s Grounds of Review

11. Though ordered to file and serve an outline of submissions 10 business days prior to the final hearing of the application for review of the Authority’s decision, the applicant failed to do so.[1] Upon invitation, the applicant made short oral submissions before this Court which did not relevantly touch upon how the Authority approached the issues before it. The Court was accordingly left in the position of having to benevolently consider the grounds of review before it.

    [1]           See Order 6 of the Orders of Registrar Colbran made on 9 July 2018.

12. The applicant’s claims involved a consideration of the application of s. 473DD of the Act.

13. In AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 at [11] – [12] and [16] – [18], Kiefel CJ, Gageler, Keane and Gordon JJ said as follows:

    “[11] Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

    [12] The result, as has been recognised by the Federal Court in numerous other cases16, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).”

    …

    [16] Under cover of a submission from his migration agent, the appellant proffered to the Authority for the purpose of its review of the delegate's decision several documents which he had not provided to the Minister in support of his application. One was a letter which post-dated the decision of the delegate. The letter was from Mr Appathuray Vinayagamoorthy, a lawyer and former member of the Sri Lankan Parliament for the Jaffna District. The letter stated that the appellant and his family were known to Mr Vinayagamoorthy and went on to recount historical events corroborative of the appellant's claims. The letter added, "[e]ven still the EPDP and the Army visit his house to make inquiries about his whereabouts".

    [17] The Authority affirmed the decision of the delegate, finding amongst other things that the appellant had fabricated his claim to fear mistreatment at the hands of the EPDP and had embellished his claim to fear mistreatment at the hands of the Sri Lankan Army. The Authority recorded in the statement of reasons for its decision on the review that the letter was "new information" which it had not considered in making its decision on the review. That was for reasons which the Reviewer who constituted the Authority for the purpose of the review explained in the following terms:

    "I accept the letter of support from Appathuray Vinayagamoorthy could not have been provided to the delegate as it was written after the delegate's decision. However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister. I am not satisfied that any exceptional circumstances exist that justify considering the new information."

    [18] Plainly enough, the Authority assessed the letter against the criterion specified in s 473DD(b)(i), finding that criterion not to be met. It went on to assess the letter against the criterion specified in s 473DD(a), finding that criterion not to be met. There being nothing to suggest that the letter was incapable of being assessed by the Authority to meet the criterion specified in s 473DD(b)(ii), what the Authority should have done, but evidently did not do, was assess the letter against the criterion specified in s 473DD(b)(ii) and then take that assessment into account in going on to assess the letter against the criterion specified in s 473DD(a).”

    (footnotes omitted)

14. Ground 1 of the application for review was of three (3) parts. It was claimed that the Authority fell into jurisdictional error by acting unreasonably or illogically when considering, pursuant to the provisions of s. 473DD of the Act, whether to have regard to additional information relating to the death of the applicant’s child. The grounds of review were limited to the Authority’s treatment of the applicant’s claims relative to his daughter’s medical condition and death.

15. As to the Authority’s consideration of the applicant’s claims relating to his child’s illness and subsequent death:

    (a)By a submission dated 27 August 2017, the applicant’s representative referred to the applicant’s daughter’s medical condition, and subsequent death, in support of the applicant’s claims to be a witness of credit. The submission relevantly provided as follows: [2]

    [2]           Court Book (CB) pp. 236 and 239.

    Decision Record, ‘Continued Interest’, Page 5 – 6 | 1:07:25 of the PV Interview

    “In 2016, the Applicant’s daughter’s doctors instructed the Applicant to come back to Sri Lanka due to the Applicant’s daughter’s severe heart condition. The Applicant mentioned this to the Decision Maker, however without asking further questions or consideration, the Decision maker dismissed this fact because he verily believed that it had nothing to do with the Applicant’s refugee claims.

    However, we submit that this did have to do with the Applicant’s refugee claim. The mere fact that the Applicant refuses to go back to Sri Lanka to spend time with his five (5) year old sick daughter speaks to the objective and subjective well-founded fear that the Applicant has of returning to Sri Lanka. Further, it speaks to the credibility of the Applicant’s claims.

    We note that the Applicant’s wife never took their daughter to extra treatments as the hospitals were in Colombo; a heavily populated, Singhalese centric city. Further, given the CID constantly interrogate her in relation to the Applicant’s whereabouts, she was scared of leaving her residential address because of the consequences which may occur if she is gone when the CID come to interrogate her. As a result, the Applicant’s daughter died some three (3) weeks ago. Even the Applicant’s wife’s actions clearly speaks to the credibility and well-founded fear of the Applicant’s refugee claims.

    …

    Further, as stated in MILGEA v Che Guang Xiang, the totality of the Applicant’s claims needs to be assessed. When accumulatively considering all of the harassment and threats that the Applicant has received from the CID, we submit that the Applicant’s claims are genuine as opposed to fanciful.”

    (b)At [9] and [10] of its reasons, the Authority considered the applicant’s daughter’s medical condition, and subsequent death, by reference to the said submission, finding as follows:

    “[9] The submission includes new information about the illness of the applicant’s 5 year old daughter, and the circumstances relating to that illness, namely that:

    ·In 2016 his daughter’s doctors instructed the applicant to come back to Sri Lank due to her severe heart condition;

    ·His wife did not take their daughter for extra treatment as the hospitals were in Colombo, and she feared going to Colombo as it is a Sinhalese centric city and because she feared the consequences from the CID of leaving her residential address given the CID constantly interrogate her in relation to the applicant’s whereabouts;

    ·As a result his daughter died about three weeks ago.

    [10] Although neither the details of the applicant’s child’s illness nor any of the above circumstances were previously provided, I note that the applicant gave evidence at his PV interview that his child in Sri Lanka is very sick and that if there was no trouble in his country he would have returned, thereby inferring that he has not even returned to see his sick daughter. He also offered to show the delegate a photo of his child that his wife had sent him from Sri Lanka, which the delegate said was not required as it was the applicant’s claims for protection in respect of his fears of returning to Sri Lanka that he had to consider in light of the country information. It is clear that the applicant raised his daughter’s illness at the PV interview, although evidence about her condition was not sought. In light of the information before me concerning the child’s illness, I have no reason to doubt the credibility of the new information that she had a severe heart condition, that in 2016 the doctors had instructed the applicant to come back due to this condition and that, sadly, she has recently died. However, the applicant had already given evidence of his fears of returning to Sri Lanka even to see his very sick daughter and I do not consider that the new information about her illness, having been instructed by her doctors to come back due to her condition and her recent death would have any bearing on his claims for protection. Further, I do not consider that the new information about the reasons for his wife not taking their daughter to hospital in Colombo are credible; in particular, I consider that it is simply not believable that a mother would not take her seriously ill child to hospital for extra treatment knowing that the child may die if she failed to do so, for the reasons claimed. I do not consider it plausible that fear of consequences from the CID as a result of her absence from her home or fear of going to Colombo because it is Sinhalese centric, would outweigh fears of the risk of death to her daughter as a consequence of failure to take her to hospital. In all the circumstances, I am not satisfied that there are exceptional circumstances to justify considering the above new information.”

1. It was clear that the applicant had raised the issue of his daughter’s illness with the Department at his PV interview prior to the decision of the delegate being handed down. As such, it was information which was previously known to the Minister. It was therefore not new information for the purposes of s. 473DD(b)(i) of the Act. There was otherwise no basis for it being submitted that the Authority had not considered such information in any event.

2. Secondly, to the extent that the applicant, in his submission of 27 August 2017, introduced the claim that the applicant’s wife did not take the daughter to hospital in Colombo because she feared some unspecified consequences in the event of her being absent should the CID attend (presumably at her place of residence) to interrogate her, it was open for the Authority to find that such information was not credible personal information for the reasons it gave in its reasons, namely that it was incredible that a mother would not take her seriously ill child to hospital for medical treatment in circumstances where she knew that there was a chance that the child would die if such treatment was not obtained. Such finding was reasonable based not only upon basic notions of the love and affection that a mother has toward their child, but also upon the evidence before the Authority. Because the Authority did not accept that such new information was credible, such information did not fall under s. 473DD(b)(ii) of the Act. There was therefore no basis for the Authority holding that there were exceptional circumstances justifying its consideration of such information.

3. The Authority’s approach to that issue was logical and not irrational as claimed by the Applicant. The Court adopts what was said by Wigney J in SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210 at [52] and [54] - [56] inclusive where His Honour said:

   “[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

   …

   [54] The Minister’s submission in that regard is rejected.  The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]):  see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61] – [62].

   [55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].”

   [56] An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error.  That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa.  Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny:  SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.”

4. Neither was the Authority unreasonable in the manner in which it dealt with the applicant’s claim relating to the health of his daughter. The Authority, at [28] of its reasons, recorded that it had had regard to country information which reported that the security situation in the north of Sri Lanka had improved dramatically since the end of the conflict, and that save for those people who were very high level operatives in the LTTE, or people who had been involved in criminal acts or war crimes, other Tamils were not likely to face adverse harm based upon past connections. It was further pointed out that it had been over 10 years since the applicant had been forcefully taken by the LTTE, and that the applicant’s profile was not such as to make him a person of adverse interest to the Authorities after such period of time.

5. At [31] of its reasons, the Authority recorded that country information did not support a finding that Tamil ethnicity alone imputed LTTE membership or a pro LTTE bent. There was no basis for the claim that the Authority had acted unreasonably when arriving at its adverse finding on credibility against the applicant. As was said in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] and [11] per Kiefel CJ:

   “[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”

6. There is no merit to the claim in Ground 1(a) of the Application for Review.

7. As to Ground 1(b) of the Application for Review, the Authority was entitled to find that the applicant did not have the level of profile as claimed by him. At [22] of its reasons, the Authority found that elements of the applicant’s claims were untrue and that his evidence was contrived, vague and implausible. The Authority pointed to timeline inconsistencies prior to making such findings. The Authority had appropriately weighed up all of the evidence before it, and it was open for it to make adverse credibility findings against the applicant.

8. 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.”

9. The decision of the Authority could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76]      As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

10. There is no merit to Ground 1(b) of the Application for Review.

11. As to Ground 1(c) of the Application for Review, the applicant has by this ground sought to have the Court undertake an impermissible merits review of the decision of the Authority. The ground is related to Ground 1(a) and is, for the same reasons as given in respect of Ground 1(a), unmeritorious.

12. In arriving at its findings, it cannot be said that the Authority, when analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] - [27], where it was said:

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

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

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

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

14. The Grounds of Review are without merit and are dismissed.

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

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       10 March 2021