Dci16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 45
•16 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DCI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 45
File number(s): MLG 2268 of 2016 Judgment of: JUDGE EGAN Date of judgment: 16 September 2021 Catchwords: MIGRATION – Application for protection visa – significant inconsistencies in applicant’s claims – reliance upon country information by Tribunal appropriate – adverse credibility findings against applicant – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 499.
Ministerial Direction No. 56
Cases cited: Minister for Immigration and Border Protection v Pandey [2014] FCA 640.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 7 September 2021 Date of hearing: 7 September 2021 Solicitor for the Applicant: Mr I. Warraich of HUK Legal Services Counsel for the First Respondent: Mr. J. Barrington Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance save as to costs ORDERS
MLG 2268 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: DCI16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
16 SEPTEMBER 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 Amended Application for Review filed on 30 August 2021 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7, 853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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
The applicant is a citizen of Pakistan who arrived in Australia on a Tourist visa in June 2013. He was recorded as being a Sunni Muslim of Jatt ethnicity.
On 31 July 2013, the applicant applied for a Protection (Class XA) visa.
After attending an interview with a delegate of the Minister, the delegate refused to grant the visa on 5 December 2014.
On 2 January 2015, the applicant lodged an application for review of the decision of the delegate by the Administrative Appeals Tribunal (‘the Tribunal’).
On 20 September 2016, the Tribunal affirmed the delegate’s decision.
On 19 October 2016, the applicant lodged an Originating Application for Review of the decision of the Tribunal.
At the hearing before the Court, the applicant relied upon an Amended Application for Review filed on behalf of the applicant by his lawyers on 30 August 2021.
Consideration of Applicant’s Claims
At [4] of its reasons, the Tribunal outlined the relevant criteria that needed to be met for a Protection visa to be granted.
At [5] – [14] of its reasons, the Tribunal appropriately set out the relevant considerations when assessing Australia’s protection obligations pursuant to the provisions of s. 36(2)(a) of the Migration Act 1958 (Cth).
At [15] – [17] of its reasons, the Tribunal appropriately set out the relevant considerations when assessing Australia’s complimentary protection obligations pursuant to the provisions of s. 36(2)(aa) of the Act.
At [18] of its reasons, the Tribunal relevantly noted that it was required to take into account policy guidelines as set out in Ministerial Direction No. 56 made pursuant to the provisions of s. 499 of the Act.
At [19] of its reasons, the Tribunal set out the claims made by the applicant as follows:
“[19] The applicant provided the following statement with their application.
MY CLAIMS FOR PROTECTION
MY FAMILY BACKGROUND
My name is [DCI16]. I was born in [DOB omitted] in Pakistan. My residential address in Pakistan is [address omitted], Lahore. I am married. My wife and my four children are in Pakistan. My father, mother and two brothers live in Pakistan. One brother is in Spain.
MY EDUCATIONAL BACKGROUND
I have completed up to Year 12 in school and a Diploma in Electronics.
MY EMPLOYMENT BACKGROUND
I work at Allama Iqbal Air Port in Pakistan as a Protocol Manager. I have my own courier and cargo business.
MY RELIGIOUS BACKGROUND
I am a born Muslim.
MY DECISION TO LEAVE PAKISTAN & RESIDE PERMANANTLY IN AUSTRALIA
I came to Australia on a visitor visa, this June. This was because my circumstances were so compelling. I work at Allama lqbal Airport, Lahore, in the VIP Protocol section of the airport. My duties are such I have access to areas that are prohibited to many others working at airport.
To this very reason, several months ago, I was approached by members believed to be Taliban or a similar terrorist group. They asked me to either give my pass to them to enter these restricted areas or asked me to take some parcels in to the area.
I was placed in very difficult circumstances. I did not want to risk my employment as well as bow to pressure from these people. I was scared to for myself and my family, as these people are known to be really nasty.
As I did not comply with their demands, they again met me and asked me to take some parcels for them. I understood that the parcel contained explosive devices, perhaps bombs. I got very scared. I refused.
I wanted to inform my supervisor, employer and airport authorities but was reluctant as they threatened to kill me if I ever did. After having considered my options, I told my immediate supervisor who asked me to be very careful and assigned me some other duties. I was relieved that I somehow escaped from these people.
However, these people approached me again, in the street, and verbally and physically tortured me. They pushed and hit me to the ground and said next time I would be killed. They told me no one disobeyed them.
I quickly arranged my family to go elsewhere in the country and somehow applied for a visitor visa and came to Australia. If I could have, I would have brought my family with me. But as things happened so fast, I had no alternative but come here and seek protection.
I cannot return to Pakistan now as I fear for my life and those of my family. These people are nasty and would not leave me alone as they suspect I will inform the authorities. I cannot work in the same airport. I cannot live in constant fear when this group will target me next. I need safety and protection.
NO SAFETY IN PAKISTAN AS A STATE
There is no safety in Pakistan as anarchy and restless is on the rise and Pakistan as a State does not have enough resources to cope with all these problems. They get so many complaints like this and do not take them seriously.
MY APPEAL FOR REFUGE
I would like to request that my application be kindly considered for protection in Australia. I believe that Australia is a peaceful and peace loving country and I can live here peacefully without being harmed or threatened by others. I strongly believe that my life would be at risk once and if I go back to Pakistan.”
(personal identifying information omitted)
Grounds of Review
The grounds of review as set out in the Amended Application for Review, were as follows:
1. The Tribunal erred by making findings that were not based on probative evidence; and which were legally unreasonable.
Particulars
a) That the Applicant has not been contacted by Taliban or unknown person as he has claimed to take a parcel to plane or do any other act on their behalf.
b) That the Applicant does not face a real chance of serious harm for a convention reason, now or in any reasonably foreseeable future.
c) That the Applicant does not have a well-founded fear of persecution for convention reason.
2.The Tribunal erred by misapprehending the evidence and then use its erroneous findings about the evidence to make negative credibility findings.
a) The Tribunal misapprehended evidence of the Applicant protection claim in relation to the threats he received, and then used its erroneous findings about the statements to make negative credibility findings against him.
b) The Tribunal erred by misapprehending evidence of the Applicant approached airport security and the genuineness of the statement and then used those findings to make negative credibility findings against them.
c) The Tribunal erred by misapprehending the evidence provided by the Applicant and based the findings just on the inconsistencies discovered later. The Tribunal further totally ignored that how threats affected the Applicant assertions and other mental capacities. There is also a big factor that the Applicant is most vulnerable person and can be very easily affected by the ongoing stresses and strains. The Tribunal erred by using those findings to make negative credibility findings against him to the extent it placed no weight on his evidence.
d) The Tribunal erred by misapprehending the evidence provided by the Applicant that he has not exhausted the formal complaint procedures as envisaged in the Pakistani jurisdiction. It is to explain here that the Applicant is a lay person with limited comprehension who faced serious threats by the extremist groups. He just did take recourse to the best of his capabilities.
e) The Tribunal erred in considering the DFAT report and overall country situation as the threats made to the Applicant were of subjective nature due to peculiarity of his employment in a high security zone.”
Ground 1 was a claim that the Tribunal erred by making findings not based on “probative evidence”, and where such findings were claimed to be legally unreasonable. The applicant claims that the Tribunal erred in finding that the applicant had not been contacted by the Taliban, or an unknown person, requesting that the applicant drop off a parcel to a plane. It was further claimed that the Tribunal erred in finding that the applicant did not face a real chance of serious harm, and that the applicant did not have a well-founded fear of persecution.
The Tribunal addressed issues relevant to the applicant’s credibility in the context of findings that it made as to there being significant inconsistencies between those claims made at the time of the lodging of the Protection visa application, and those subsequently made by the applicant. At [33] – [40] of its reasons, the Tribunal clearly considered the applicant’s claim that he had been asked to take a parcel to a plane, expressing reservations about those claims as follows:
“[33]The Tribunal has some significant concerns with the claims of the applicant, which it identified with him at the hearing. The Tribunal discussed with the applicant its serious concerns with the documentary material provided by the applicant, and the significant alteration between his evidence as provided in written form, and the claims as made at the departmental hearing.
[34]The Tribunal identified that the applicant had lodged a statement titled ‘My Claims for Protection’ with his application for a protection visa on 31 July 2013. This statement, included above, details an approach by persons the applicant describes as the ‘Taliban or a similar terrorist group’, to take some parcels into a restricted area at Lahore International airport. The statement describes a number of approaches by these people to the applicant. The applicant describes telling his immediate supervisor. The applicant then states that these people approached him again, in the street, and verbally and physically tortured him, pushed and hit him to the ground and said next time he will be killed’. The applicant confirmed that he was represented in lodging the application and was assisted in preparing the statement.
[35]The applicant provided a different set of claims and documentary evidence to the Department of Immigration and at the delegate’s interview. The documents were provided on 15 April 2014, and the applicant was interviewed by the Department on 3 April 2014 and 23 April 2014 respectively.
[36]Through these documents and as detailed above, the applicant provided new information about his claims, including a different explanation of the incident the applicant now identified as occurring on 13 March 2013. The applicant claimed that instead of verbally and physically tortured, hit and pushed on the street, he was in fact kidnapped at gunpoint, taken to a different location, kicked and threatened, and made to promise that he would drop a parcel at the air plane. If he did not do so he and his family would be killed.
[37]The Tribunal questioned why the applicant’s statement would be so different to the subsequent evidence provided to the Department, including the absence of any reference to the kidnapping in his written claim. The applicant stated that he believed it was an error of the woman typing the statement on his behalf, that she did not include that information. The applicant claimed there was an error regarding his family composition, that the statement only identified two children, and made a mistake in relation to the number of brothers living in Pakistan which should only be one, . The Tribunal identified that the statement did reference four children, but did include two brothers in Pakistan. However the Tribunal questioned how such a significant aspect of the applicant’s claim that he had actually been kidnapped, would not be included, and an alternative incident was included in such a statement. The applicant claimed it was an error of his agent and assistant. The Tribunal expressed its significant concern at the absence of the applicant’s kidnapping claim in his original application.
[38]The Tribunal notes that the applicant has provided a series of alternate explanations as to his initial dealings with the Taliban. In the initial statement the applicant describes a number of approaches to him, stating ‘I was approached by members believed to be the Taliban or a similar terrorist group’, who asked him to either ‘give my pass’ or to take parcels into the area’, that ‘as I did not comply with the demands they met again met me’, ‘and then after considering his options he ‘told his immediate supervisor’. In his evidence to the Department the applicant stated ‘he received calls from unknown numbers that he later learnt were from the Taliban’, and on 25 February 2013 ‘he was pressured too much’ which led to the applicant speaking to his General Manager. At the Tribunal hearing the applicant stated he received calls from an unknown number which he did not answer, that the first contact he had with these people was on 25 February 2013, where he answered a call from an unknown number, and was told that they wanted to meet him, and wanted the applicant to take a parcel to a plane. The applicant stated that they had studied where he sat in the hierarchy, had done a background check and knew what the applicant could and could not do, and threatened to kill him and his family.
[39]The Tribunal expressed its concern at the approach by the people the applicant has described as the Taliban to him. The Tribunal notes the inconsistencies of the applicant’s evidence about their approach. The Tribunal also questioned the plausibility of the applicant being told, on what was his first conversation with a person from an unknown number, that he would be required to place a parcel on a plane, that the people had done a background check on the applicant and knew what his role and responsibility was, and that if he did not accede he and his family would be killed. The Tribunal expressed its surprise that such a threat would be made at first contact.
[40]The Tribunal also noted that the applicant’s evidence, that he was asked to take a parcel to a plane was inconsistent with the applicant’s actual permissions at the Lahore airport. The original pass that the applicant had provided to the Department identified that the applicant had the right to enter the Baggage Area, Lounge and Arrival locations in the domestic and international sections of the airport, but that he did not have access to the apron or any of the planes. The applicant confirmed these access rights with the Tribunal. The applicant claimed that the language ‘place the parcel in the plane’ could mean that he was asked to take the parcel to a person located in the lounge. The Tribunal expressed its concern with such a strange construction of the language, that the information as provided by the applicant consistently was about the applicant taking a parcel to a plane, something that was beyond the applicant’s operational permission. The applicant had no capacity to take a parcel to a plane as his duties were limited to non-apron concourse locations. The Tribunal considers that the applicant’s capacity to act in the manner as requested by the unknown phone caller did not equate to his position in the hierarchy at the airport.”
At [41] – [49] of its reasons, the Tribunal actively intellectually engaged with the applicant’s claims as to his having been anonymously contacted by someone to take a parcel to a plane. The Tribunal had regard to country information, the contents of which, in relation to complaint procedures and processes, differed substantially from the alleged complaint process said to be in existence as claimed by the applicant. At [45], [46] and [50] of its reasons, the Tribunal set out its concerns as follows:
“[45]The Tribunal expressed its concern as to the letters that have been provided, which the applicant states are ‘complaints’ and the issue that no FIR was created. The Tribunal questioned why the applicant did not have a FIR relating to these two police station approaches. The applicant stated that he was not the person who wrote the 25 February report, his General Manager wrote this. The Tribunal asked why and if I of the 13 March incident was not recorded. The applicant stated that the police were too frightened to register the FIR, they told him that the police station could also be targeted by the Taliban, that they also have kids. The Tribunal expressed its serious concern with this claim of the applicant that the police would refuse to register a report of a kidnapping because people who may have been Taliban were alleged to have been involved. The Tribunal expressed its concern with this explanation as to why the FIR was not lodged.
[46]The applicant provided a letter from a person stating they were an ‘Advocate High Court’ who certified the police reports as ‘true and correct having their complete record in the concerned offices’8. The Tribunal noted that this letter in fact stated something different to what the applicant was alleging that the reports were ‘against’ the applicant and not ‘about’ the applicant. The Tribunal noted the reports as specified had nothing to do with anything ‘against’ the applicant. The Tribunal expressed its concern that the genuineness of this letter.
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[50]The applicant’s explanation for this failure to report to airport security was vague and limited. The applicant first stated that the call came to him, demanding that he take a parcel to a plane, and if he did not do so he would be killed. The applicant stated that he was the one upset, he went to the General Manager, and his General Manager wrote to the Sarwar Road police station. The applicant then stated that the security was in position, but that it was not for him, he just had to tell his manager. The Tribunal noted that the threat that the applicant was describing was specifically about his role and access within the airport, threatened the very security of the airport, and that it appeared implausible that the applicant or his manager would not report such a threat to the airport security. This was particularly the case in circumstances where the applicant believed that the police were taking no action to provide safety and security to the applicant regarding the reported threats and claimed kidnapping incident.”
At [55] – [59] and [66] of its reasons, the Tribunal expressed its concerns about the applicant’s claims that police were contacted by the applicant and his general manager, rather than reporting to airport security services personnel who were directly responsible for such matters. At [60] – [62] of its reasons, the Tribunal found as follows:
“[60]The Tribunal does not accept that the drafting errors explain the significant difference between the applicant’s written claims and subsequent claims made at the Tribunal and Department. The Tribunal does not accept that the person assisting the applicant would make such a significant change to the applicant’s claims to leave out the applicant’s claim that he was kidnapped, taken to a new location, beaten, threatened and made to promise to carry out an act on behalf of this insurgent group. The Tribunal does not accept that this would be recorded as an incident on the street where the applicant was threatened, pushed over and hit. The Tribunal finds that the written statement provided with the application is a correct record of what the applicant told at the outset. The Tribunal considers that the applicant has changed his claim subsequently, including creating new information to support his altered claim.
[61]The Tribunal does not accept that the applicant received telephone calls from an unknown number. The Tribunal notes the inconsistencies in the evidence of the applicant regarding contact prior to 25 February 2013. The applicant has altered his claims from engaging with the unknown number and that caller, as per the original statement, including meeting them, to his claim at the hearing that his conversation with the unknown caller on 25 February 2013 was the first time he had spoken to the applicant. The inconsistency of this evidence leads the Tribunal to consider that the applicant has contrived this aspect of his claim.
[62]Further, the Tribunal also considers the details of the claimed conversation on 25 February 2013 are implausible. The Tribunal noted its concern with the claim of the applicant that in the very first conversation this unknown person, having identified the applicant’s role and responsibility at the airport, would demand that the applicant ‘take a parcel to a plane’ and threaten the applicant and his family with harm if he did not do so. The Tribunal questioned the actions of the unknown caller to make such a demand in the first instance, without ever speaking to the applicant previously. The Tribunal found this to be a highly questionable.”
On the question of credibility, the Tribunal made adverse credibility findings against the applicant at [69] and [70] of its reasons as follows:
“[69]The Tribunal finds that the applicant has not been contacted by the Taliban or unknown persons as he has claimed, to take a parcel to a plane or do any other act on their behalf. The Tribunal does not accept that there was any report made to the police by the applicant or his manager on 25 February 2013. The Tribunal does not accept that the applicant was kidnapped on 13 March 2013, or stopped on the street and threatened and beaten. The Tribunal does not accept that the applicant was a person of interest to the Taliban such that he would be approached in this way. The Tribunal does not accept that the applicant went to the police to lodge a ‘complaint’, or that this complaint was not accepted by the police. The Tribunal does not accept that the applicant continued to receive calls from the Taliban or unknown person demanding that he act on their behalf. The Tribunal does not consider that the applicant is a witness of truth in this matter or that the documents are genuine.
[70]As the Tribunal has determined that the applicant’s claim to have been required to act on behalf of the Taliban or an insurgent group are false, the Tribunal accordingly does not accept the applicant’s further claim that he would face harm on return to Pakistan for not doing as he had ‘promised’. The Tribunal does not accept that the applicant has been requested to act on the Taliban’s behalf, so does not accept that the applicant will be harmed for failing to act on the Taliban’s behalf, on return to Pakistan.”
The findings of the Tribunal were open on the evidence before it. A high bar must be met to establish legal unreasonableness. On the question as to whether something was legally unreasonable or not, Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and [42] said as follows:
“[41] The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) 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: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
[42] The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable. Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?”
Another reasonable, rational and logical decision maker could have arrived at the same decision as did the Tribunal. 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.
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[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.”
The applicant has essentially asked the Court to undertake an impermissible merits review of the applicant’s claims. There is no merit to Ground 1 of the Amended Application.
As to Ground 2, it was claimed that the Tribunal misapprehended the evidence of the applicant, and that the Tribunal had erred in doing so. This was again an attempt to invite the Court to undertake an impermissible merits review. As was found in respect of Ground 1 claims, the findings of the Tribunal on questions of credibility were open on the evidence before it. The inconsistencies in the applicant’s claims, and the discrepancies between such claims and country information, were so substantial and numerous as to raise appropriate doubt in the Tribunal member’s mind about the applicant’s credibility. The Tribunal did not err in the way that it weighed up all of the evidence before it, before arriving at its adverse credibility findings. As part of that process, it cannot be said that the Authority, when so 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.”
The Tribunal appropriately considered country information before it, and specifically relied upon DFAT country information, as it was entitled to. There is no merit to Ground 2 of the Amended Application.
The decision of the Authority could not be considered as being 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.
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[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.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 16 September 2021
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