DBC17 v Minister for Immigration
[2019] FCCA 1913
•17 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBC17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1913 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – refusal of protection visa – applicant fears return to India because of risk of suffering persecution as a consequence of being a party to an inter-faith marriage – AAT not satisfied there was a real chance of persecution – AAT did not consider applicant’s evidence to be credible – no jurisdictional error established – AAT decision was rational and logical – application dismissed – costs. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36(2), 65, 348, 359, 360, 474 |
| Cases cited: Craig v South Australia (1995) 184 CLR 163 |
| Applicant: | DBC17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 276 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 7 June 2019 |
| Date of Last Submission: | 7 June 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 17 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondents: | Mr Retallick |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for review filed 7 July 2017 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of seven thousand three hundred and twenty-eight dollars ($7,328.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 276 of 2017
| DBC17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings seeks judicial review of a decision of the Administrative Appeals Tribunal[1] not to grant him a protection visa pursuant to the provisions of the Migration Act 1958.[2]
[1] Hereinafter referred to as “the AAT”
[2] Hereinafter referred to as “the Act”
The relevant decision was made on 20 June 2017. The application for judicial review was filed, in this court, on 7 July 2017. Accordingly, it is within time.
The applicant has acted on his own behalf throughout the proceedings and prepared his own grounds of review. He seeks an order that the relevant decision of the AAT be quashed.
The applicant is a citizen of India. He initially arrived in Australia, with his then spouse, in May of 2008 pursuant to the provisions of a student visa, which enabled him to undertake studies in this country.
In October of 2011, he applied for a skilled graduate visa. This application was refused by a delegate for the Minister for Immigration & Border Protection, in October of 2012, on the basis that the applicant did not satisfy a condition attaching to the visa, namely that he had competent English language skills.
Thereafter, there was a merits review of this decision in the Migration Review Tribunal, followed by judicial review proceedings in this court and further appeal proceedings in the Full Court of the Federal Court.
The applicant was unsuccessful in each of these proceedings. Thereafter he sought ministerial involvement in respect of the decision to not grant him a visa. The Minister declined to intervene.
These various interventions were completed in April of 2016. Thereafter, on 10 May 2016, the applicant lodged an application for a protection visa on the basis Australia owed him protective obligations because there was a real chance he would suffer persecution, if returned to India.
The applicant is a Hindu by religion. He claims that his life is in danger, if he returns to India. In his application for the relevant visa, he wrote as follows:
“I was married to a Sharmili Devi. She is follower of Dera Saccha Sauda. We have children together. After a long relationship we have separated. Her family and Dera followers believe that I brought bad name to their family and dera followers. They believe that I tried to convert her and as she did not I left her. These people are uneducated bunch of fanatics and can go to any extent to harm me. I being hindu is a problem for them as I am not following their Dera.”
Country information provided by the Department of Foreign Affairs & Trade indicates that DSS has millions of followers worldwide and cites as its key principles secularism; equality; ante-materialism, truth and faith; meditation; strict individual discipline; strict social discipline; and hard work.[4]
[4] Ibid at page 68
On 25 July 2016, a delegate of the Minister for Immigration & Border Protection declined to grant the applicant a protection visa on the basis that she was not satisfied that there was a real chance the applicant would suffer persecution, if returned to India.
In her reasons, the delegate noted that the applicant had lived in Australia, with his wife, for more than eight years and had returned to India on several occasions. The delegate also noted that the applicant’s children were living in India in the care of his parents.
The delegate also considered that relevant country information, regarding the activities of the DSS specifically and Hindus generally, in India, did not indicate that the applicant was at risk of harm in either his home region or anywhere else in India because of his religious views.
In all these circumstances, the delegate considered that it was more probable that the applicant had lodged his application for protection because he had exhausted all other legal avenues available to him to remain in this country pursuant to the provisions of the Act.
As a consequence of this decision, the applicant put a review of this decision in to the AAT on 11 August 2016. Pursuant to the provisions of section 360(1) the applicant was invited to appear before the Tribunal to give evidence and prevent any arguments, which he wished to mount, in support of his application on 15 June 2017.
The applicant took advantage of this invitation and provided evidence to the AAT. In his evidence, the applicant reiterated his claim that members of the Hindu community might not approve of his marriage to a follower of the DSS and, as a consequence, might kill him. The Tribunal indicated that the applicant was not able to indicate which particular members of the community he feared.
In addition, the applicant claimed to have received phone calls, from some people, whom he suspected might be members of the Hindu community, who had threatened him.
He also asserted that he had received a threatening call, from his ex-wife’s family telling him his life was in danger. In this context, the applicant said his wife’s family wanted to kill him because he had ruined her life.
Accordingly, the applicant indicated some level of fear in respect of both the Hindu population but also members of his wife’s family. The AAT summarised this evidence as follows:
“The applicant said that at the beginning he feared the Hindu community but afterwards he feared his wife’s family because they wanted him to convert to the DSS religion. The Tribunal told the applicant it was concerned that he had not previously mentioned this evidence and was making new claims.”[5]
[5] See Case Book at 104 [29]
After having considered the applicant’s evidence and other country information available to it, regarding the activities of the DSS in India, the Tribunal found as follows:
“The Tribunal has had regard to the applicant’s evidence and the country information and not satisfied that there is a real chance that the applicant will face serious harm from his ex-wife’s family, members of the DSS religion and/or members of Hindu his community if he returns to India in the reasonably foreseeable future. The Tribunal finds that the applicant’s fear of harm because of his Hindu religious beliefs and/or because of his ex-wife’s DSS religion and/or because of his imputed political opinion as Hindu who is opposed to the DSS religion is not well-founded.”[6]
[6] See Case Book at 107 [53]
On this basis, the Tribunal was not satisfied that Australia owed the applicant protective obligations pursuant to the provisions of section 36(2)(a) of the Act or complimentary protective obligations pursuant to section 36(2)(a) of the Act. The applicant seeks judicial review of this decision.
The applicable framework under the Act
Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
In respect of a protection visa, the criteria required to be satisfied are set out in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-found fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·being subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering persecution if returned to a particular country.
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[7]
[7] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[8]
[8] See Craig v South Australia (1995) 184 CLR 163
In order to be successful in his application for review, it will be necessary for the applicant to demonstrate an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own discretion for that of the Tribunal.
The grounds of review
As previously indicated, the applicant has prepared his own grounds of review. They are not easy to follow. For the main part, the applicant has chosen to replicate portions of the decision of the AAT without additional comment. What remains is as follows:
I told tribunal member that I have received threats on phone calls. What kind of evidence does the member want? People who are threatening are not sending Emails they are calling. What evidence can be given? Tribunal member wanted proof of received phone calls when there cannot be any evidence for this. Further Tribunal member stated that He rejects the claim that my wife and her family are followers of DSS. On what basis tribunal member can make a decision without even asking the person. Member did not ask my wife did she follow DSS or not, did not ask her family members. If member was concerned that she is not a DSS member he should have made enquiries with her or family. Member just made decision that she is a follower of DSS or not without any substantial ground. Member made numerous errors in the decision. Member made jurisdictional error by jumping to conclusion that my wife was not a DSS member and relying on fact that evidence of threat is not given when a evidence of received calls cannot be given.”[9]
[9] See Grounds of Application filed 7 July 2017
Doing the best I can, I consider that the applicant’s complaints, in respect of the decision of the AAT, can be summarised as follows:
·There was no evidence available to the AAT to support its finding that the applicant had not been subject to threats, via the telephone because of his circumstances;
·The AAT did not make its own inquiries of the applicant’s wife and her family regarding their status with the DSS and therefore it was not reasonable for it to conclude that she was not a DSS member;
·The decision itself was replete with numerous errors and therefore should not be allowed to stand.
The decision of the AAT
One of the central aspects of the applicant’s claim for protection centred on his evidence that his former wife was a member of the DSS and therefore because he was separated from her, his ex-wife’s family would harm or kill him, either because he would not himself convert to DSS or he would attempt to convert her to Hinduism. In the alternative, he asserted that he was in danger because some fanatical members of the Hindu community would want to kill him because he had been married to a member of DSS.
The AAT assessed these claims to be vague and inconsistent. It noted that no corroborating evidence had been provided to support his claim that his wife and family were members of the DSS. In this context, it expressed some incredulity that the applicant had been married in 2000 and travelled thereafter to Australia, with his wife, but had only apparently become aware of her association, with the DSS, in 2008.
In these circumstances, the AAT doubted that there was any appreciable chance that the applicant was at appreciable risk of harm, from his wife or her family, because of the possibility that either he would attempt to convert her to Hinduism or he would not convert to DSS.
Additionally, the Tribunal noted inconsistencies, in the applicant’s evidence regarding whether the claim of danger lay in the fact that he had been accused of proselytising his wife to Hinduism but in evidence, he indicated he had no personal issues with her being a member of DSS.
The Tribunal also rejected the applicant’s claims of having received threatening telephone calls whilst in India on the basis of vagueness and lack of detail. In particular, the applicant was unable to attribute any specific person or group of people who behave, in such a way, other than “only Hindu people would do this”.
In this context, it is apparent that the timing of the applicant’s claim for protection assumed significance for the AAT, which noted as follows:
“The Tribunal has also had regard to the applicant's migration history and finds it inconsistent that the applicant claims he had to escape from India in 2008 because he feared persecution but made no claim for protection until 2016 once he had exhausted all other options of remaining in Australia.
The Tribunal also finds it inconsistent that the applicant would claim he feared persecution in India but would return to India in October 2010 and May 2012. The Tribunal found the applicant's claims that he did not face harm from his community when he returned to India because they thought he had separated from his wife unconvincing and inconsistent with his claim that he feared harm from DSS supporters.”[10]
[10] See Case Book at 107 [51] – [52]
The AAT further considered that relevant country information, regarding the activities of DSS in India and the attitude of the Indian authorities to it did not support the applicant’s claim for protection in Australia.
On these various bases, the AAT did not consider that Australia owed the applicant any protective obligations under the Act on the basis of him being a refugee or any complimentary obligation thereunder.
Conclusions
The applicant has appeared on his own behalf in this case and prepared his own application and grounds of review. It is clear that he disagrees with the factual findings made by the Tribunal and would have preferred his claims for protection to have been accepted.
The applicant claimed he has been threatened, on the telephone, by unspecified person or persons. This was not accepted by the Tribunal. In this context, the applicant pointed out the axiomatic fact that, unlike an email or a threatening letter, there is not necessarily any physical evidence to demonstrate such a phone call was, in fact, made.
The same factors arise in respect of issues relating to his wife’s membership of the DSS. The applicant asserted that she was affiliated with the DSS and this created risk for him, either from her family or the wider Hindu community in India, who would be disapproving of his association with her. Again, this claim was not accepted as being credible. From the applicant’s perspective, if asked, his wife would have been able to support his claims, if asked.
As a consequence, the applicant’s complaints of jurisdictional error centre on the fact that, from his perspective, he is unable to provide any further evidence in support of his claims vis-à-vis both the threatening telephone calls and his wife’s status with the DSS, to that already provided by him.
In these circumstances, in the absence of the Tribunal itself seeking out such further evidence, he contends his evidence should have been accepted uncritically by it. As a corollary of this, it would seem to be his submission that it was not open to the Tribunal to have found him not to be a credible witness and to have rejected his evidence in the manner in which it did.
In this context, the applicant complains that the Tribunal has committed a “jurisdictional error by jumping to conclusion” in respect of both the alleged phone calls and his wife’s status with the DSS. No more specific details of this jurisdiction error have been provided.
The un-particularised nature of the grounds of review present difficulties for the court in conducting its task of judicial review. As Reeves J observed in SZNXA v Minister for Immigration & Citizenship [11] formulaic or generic grounds of review do not allow a reviewing court to assess whether the errors generally asserted were actually committed by the primary decision maker and, as such, form a basis for the dismissal of the application concerned.
[11] SZNXA v Minister for Immigration & Citizenship [2010] FCA 775 at [20] – [21]
However, it appears to be the case that the applicant asserts that the decision is legally unreasonable in some way, either on the basis that it is intellectually flawed or otherwise subject to criticism on the basis that it is capricious or in some other way not a proper exercise of the jurisdiction conferred on the AAT.
Binding High Court authority indicates that it is an inherent requirement of the exercise of any power, conferred on a decision maker, such as the IAA, that such power be exercised reasonably and, if it is not so exercised, it amounts to a failure of jurisdiction. To be exercised reasonably, it must be possible to glean from the relevant decision record an “an evident and intelligible justification” for the pertinent decision in question.[12]
[12] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76] per Hayne, Kiefel & Bell JJ
In Li[13] Gageler J expressed the principle as follows:
“Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.” Citations removed
[13] (supra) at [90]
Again in Li, Gageler J considered that the authority conferred on a decision-maker by statute was subject to the deeply rooted common law principle that such authority be exercised both according to law and reason. In the case, under the heading Judging Unreasonableness His Honour said as follows:
“Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.”[14]
[14] (supra) at [105]
Essentially, an administrative decision maker is required to provide an intelligible and reasonable explanation as to why a particular decision has been reached – in this case whether or not the applicant was a refugee because he had a well-founded fear of persecution, if returned to India, on the basis that there was a real chance he might suffer serious harm there.
Following Li, the Full Court provided further analysis of the concept of legal unreasonableness in Minister for Immigration & Border Protection v Singh[15] identifying two distinct but related species of unreasonableness – one based on errors arising in the decision making process itself and the other based on what was the actual outcome of the decision making process.
[15] Minister for Immigration & Border Protection v Singh (2003) 231 FCR 437
In the first, the court, in its supervisory role on judicial review, is able to identify a jurisdictional error in how the decision maker has approached the statutory task conferred upon it. In the second, being outcome focussed, the reviewing court is satisfied that the exercise of power, by the original decision maker is arbitrary, capricious or outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Accordingly, it is clear from relevant Federal Court authority that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme” not merely a situation where the minds of potential decision makers might differ as to the issue in question.[16]
[16] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
In my assessment there was a clear and intelligible reason why the AAT did not accept the applicant’s claim for protection, which can be summarised as follows:
·country information did not indicate members of the DSS and Hindus generally would be concerned about the applicant’s alleged situation, in India;
·it was implausible the applicant would come to Australia in 2000 and only after having exhausted his other visa options would then make a claim for protection;
·it was implausible that the applicant would have only discovered his wife was an adherent of DSS in 2008;
·the absence of corroborating evidence, in respect of the applicant’s claims, was significant;
·it found the applicant’s claims regarding having received threatening phone calls to be vague.
The applicant may disagree with these findings. However, in my view, they were open to the Tribunal to make. A decision maker confronted with a similar scenario could logically make the same findings.
In Minister for Immigration & Citizenship v SZMDS[17] Crennan & Bell JJ said as follows in respect of how a court, conducting a judicial review of a primary decision maker’s determination is to assess whether the relevant decision is to be characterised as being irrational or illogical. Their Honours said as follows:
“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.”
[17] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR611 at 649 [135]
It is not open to this court, on judicial review, to substitute its own findings, for those of the Tribunal, in respect of such matters as country information and overall findings of credit. The AAT was the fact-finder. As such it was “entitled to accept or reject or give such weight to the evidence proffered as it [thought] appropriate in all the circumstances”. [18] It cannot be said that the conclusions reached by the Tribunal were not open to it on the evidence provided to it.
[18] See Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 467 at [27] per French J (as His Honour then was).
Similar considerations arise in respect of country information. A decision maker is entitled to give weight to such information as it considers appropriate. This court is not entitled to disagree with the contents of country information relied upon by the AAT. This court is not a fact finder.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[19] the Full Court said as follows:
“There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
[19] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]
The applicant, in this case, I think, complains that the AAT made adverse findings about his credibility in the context of not making its own inquiries of his wife and or members of her family regarding the veracity of his claims that he was at risk from them because he would either attempt to convert her from being a follower of DSS or he would decline himself to convert from Hinduism.
It fell to the applicant to present his case as he saw fit. The Tribunal was not under any duty to present his case for him or to make inquiries on his behalf. As such, the Tribunal was entitled to place the weight it wished on the absence of corroborative evidence. Having noted this lacuna in the applicant’s case, it was not the AAT’s function to attempt to find evidence to fill it.
In its supervisory role, a court, such as this one, conducting a judicial review function, is obliged to ensure that the relevant decision, subject to its review, was made fairly. It is the applicant’s case, as I understand it, that because the Tribunal did not seek out his wife, the proceedings before it were unfair in a practical sense.
In Re Minister for Immigration & Multicultural Affairs: Ex parte Lam,[20]Gleeson CJ said as follows in respect of a concept which he referred to as practical injustice:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
[20] See Re Minister for Immigration & Multicultural Affairs: Ex parte Lam (2003) 195 ALR 502 at [37]
In this context, it has been indicated by the High Court that, in certain confined circumstances, the failure by a decision maker not to ask an obvious question may result in some species of procedural unfairness resulting in jurisdictional error. In Minister for Immigration & Citizenship v SZIAI[21]the majority of the High Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) in as follows:
“It may be 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 jurisdiction 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.”
[21] Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 at 436 [25]
That is not the case here. The applicant’s wife was not present during the relevant hearing. Prior to the hearing, the applicant had been formally advised that he was being invited to it to present evidence. In these circumstances, the wife’s evidence regarding her status as an adherent of DSS and the possible consequence of that for the applicant, were not matters which the Tribunal itself could readily ascertain.
The statutory duty, incumbent on the Tribunal, is to review decisions falling within its jurisdiction [see Migration Act section 348(1)]. In so doing, the Tribunal may obtain such information as it considers relevant [see Migration Act section 359(1)].
As a consequence of these provisions, the High Court has indicated that the Tribunal has an inquisitorial function but this does not impose upon it:
“A general duty to undertake its own inquiries in addition to information provided to it by the applicant … ”[22]
[22] See Minister for Immigration & Citizenship v SZIAI & Anor (2009) 259 ALR 429 at 431
In Minister for Immigration & Multicultural & Indigenous Affairs v SGLB[23] the High Court (Gummow & Hayne JJ, Gleeson CJ agreeing) bluntly said that the Tribunal is under no duty to inquire. In all these circumstances, I do not consider that the failure of the Tribunal to make its own direct inquiries of the applicant’s wife can amount to a jurisdictional error.
[23] See Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at 22 [43]
The applicant is correct in his assertion that the adverse findings made by the Tribunal regarding his credibility were central to its decision not to grant him the relevant visa. On this basis, he contends the AAT fell into error by jumping to conclusions about his evidence.
Relevant Federal Court authority makes it clear that a finding of adverse credibility, made by a decision maker, in respect of an applicant in the context of a refugee application may, in certain circumstances, also found a finding of jurisdictional error on the basis of unreasonableness.
However, for obvious reasons and as McHugh J remarked in Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [24] findings on credibility are a function of the primary decision maker “par excellence” and in this context, care needs to be taken to avoid turning judicial review into merits review.
[24] See Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]
In Minister for Immigration & Border Protection v SZUXN [25] Wigney J said as follows in respect of the issue of applying principles relating to legal unreasonableness to a primary decision maker’s finding of fact in respect of an issue of credit:
“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…Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error… 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 made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.”
[25] Minister for Immigration & Border Protection v SZUXN [2016] FCA 516
In this particular case, the finding regarding the applicant’s credibility was made within a framework of other facts, which cannot be subject to factual challenge because they are uncontroversial. Namely, the applicant had launched his claim for protection many years after his initial legal arrival in Australia and only after his other avenues to remain in this country had been exhausted; and it was his position that he had been unaware of his wife’s relationship with the DSS for a significant period.
These factors led the Tribunal to have considerable doubts about the applicant’s credibility. In my view, these were legitimate aspects of the Tribunal’s fact finding jurisdiction and cannot be impugned as being irrational or illogical in nature. Essentially, it appears to me that the finding, by the Tribunal, that the applicant’s evidence was not credible, rested on conclusions, which were rationally and logically reached.
Overall and in conclusion, the applicant has made un-particularised and general assertions of jurisdictional error. He has not, in my view, been able to specify, with clarity, what is the jurisdictional error of what he complains, other than he believes the decision is unfair to him and therefore wrong. As indicated above, a failure to particularise a ground of review is sufficient basis for it to be dismissed.
In this matter, in my view, no jurisdictional error arises from the lengthy and considered decision of the AAT. In these circumstances, the application for review must be dismissed.
The Minister seeks costs. I accept that costs, as calculated by reference to the applicable schedule of the court’s rules, should follow the event. The appropriate awards of costs is an amount of $7,328.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 17 July 2019
[3] Hereinafter referred to as DSS is an Indian religious group founded in 1948
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Costs
18
2