DGU22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 694
•22 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DGU22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 694
File number(s): MLG 2205 of 2022 Judgment of: JUDGE FARY Date of judgment: 22 May 2025 Catchwords: MIGRATION – Migration Act 1958 (Cth) – Application for Protection (Class XA) (Subclass 866) visa – Administrative Review Tribunal not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s 36(a) or (aa) and affirmed Delegate’s decision to refuse the application for the Protection (Class XA) (Subclass 866) visa – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed. Legislation: Australian Constitution s75(v)
Federal Circuit and Family Court of Australia Act 2001 (Cth) s 136, s 232(1)
Migration Act 1958 (Cth) s 36, s47(1), s 65(1), s 91X, s 414, s 415, s 430, s 474, s 476, s 477, s 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 1 of Pt 2 of Sch 2
Migration Regulations 1994 (Cth) cll 866.1 to 866.6
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209
BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Home Affairs v DUA16 (2020) 271 CLR 550
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 74 ALJR 405
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
MZXLD v Minister for Immigration & Citizenship [2007] FCA 1912
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445
Waterford v Commonwealth (1987) 163 CLR 54
Division: Division 2 General Federal Law Number of paragraphs: 144 Date of last submission/s: 12 May 2025 Date of hearing: 12 May 2025 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Mr O’Connell, HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 2205 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DGU22
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
22 MAY 2025
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the first respondent’s costs of and incidental to the proceeding, including any reserved costs, fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Fary
INTRODUCTION
By an Application filed in this Court on 29 September 2022 (Application), the Applicants seek judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 29 August 2022 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant (Applicant) a Protection (Class XA) (Subclass 866) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that he is a person in respect of whom Australia has protection obligations as outlined in s36(a) or s36(aa) of the Migration Act.
The hearing of the Application took place at the Melbourne Registry of the Court on 12 May 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of an interpreter. The Applicant’s previous legal representation withdrew representation on 9 May 2025, on the instructions of the Applicant. At the conclusion of the hearing, judgment was reserved[1]. These are the reasons for judgment in relation to the hearing.
[1] Orders made by Judge Fary on 12 May 2025, Order 1.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal erred in the decision that the Applicant has any basis for fear and persecution upon his return to Country A (a pseudonym) at the time of the Tribunal’s hearing on 15 March 2022 (Tribunal Hearing).
BACKGROUND
The Court has before it a Court Book with 300 pages filed by the Minister on 9 January 2023 (Court Book). A Supplementary Court Book with 38 pages was filed by the Minister on 5 May 2025 (Supplementary Court Book). The Court has reviewed the Court Book in detail. The Outline of the Minister’s Submissions filed 5 May 2025 (Minister’s Submissions) accurately summarise the background to this matter at [2] to [19]. The Court adopts those submissions with amendments as follows.
The Applicant is a citizen of Country A.
On 22 December 2016, the Applicant applied for the protection visa.[2] In the Application, the Applicant provided supporting documents, which included:
(a)a letter from the Applicant’s lawyer, dated 19 October 2016; and
(b)a statement from the Applicant dated 18 November 2016.[3]
[2] Court Book (CB) 1-37.
[3] CB 39-46.
On 18 July 2019, the Delegate invited the Applicant to provide further information in support of his visa Application.[4]
[4] CB 102.
On 20 August 2019, the Applicant provided to the Delegate additional information in support of the visa Application, including an updated statement entitled ‘Additional Information’.[5]
[5] Supplementary Court Book (SCB) 1.
On 6 September 2019, a Delegate of the Minister refused to grant the Applicant the Visa (Delegate’s Decision). The Delegate found that the Applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) and 36(2)(aa) of the Migration Act.[6]
[6] CB 118-126.
On 25 September 2019, the Applicant sought review of the Delegate’s Decision before the Tribunal (Review Application).[7]
[7] CB 131-132.
On 30 September 2019, the Tribunal wrote to the Applicant to confirm acknowledgement of the Applications.[8]
[8] CB 133-137.
On 29 October 2021, the Applicant was invited to attend a hearing before the Tribunal on 15 November 2021 (Hearing Invitation).[9]
[9] CB 153.
On 9 November 2021, the Tribunal wrote to the Applicant notifying him that the scheduled Tribunal hearing was to be postponed.[10]
[10] CB 162.
On 2 December 2021, the Tribunal wrote to the Applicant inviting him to attend a hearing before the Tribunal rescheduled for 12 January 2022.[11]
[11] CB 199.
On 7 January 2022, the Tribunal wrote to the Applicant that the rescheduled hearing was postponed.[12]
[12] CB 28.
On 14 January 2022, the Tribunal invited the Applicant to attend a hearing before the Tribunal, rescheduled for 16 February 2022.[13] The Applicant’s representative wrote to the Tribunal seeking that the Tribunal hearing date be rescheduled due to the Applicant’s representative’s travel plans.[14]
[13] CB 212.
[14] CB 216.
On 1 February 2022, the Tribunal granted the Applicant’s adjournment request and rescheduled the hearing for 15 March 2022.[15]
[15] CB 223.
On 8 March 2022, the Applicant’s representative wrote to the Tribunal, seeking that the hearing be conducted in person due to the ‘profile of the Applicant and the sensitivity of the matter’.[16] The Tribunal wrote back to the Applicant’s representative indicating that the Member had considered the request and determined that the matter could be effectively heard via Microsoft Teams.[17]
[16] CB 226.
[17] CB 229.
On 15 March 2022, the Applicant and his representative appeared at the hearing via Microsoft Teams. The Applicant’s father appeared as a witness at the hearing.[18]
[18] CB 232.
On 11 April 2022, the Applicant’s representative provided post-hearing evidence in the form of a further letter from an Attorney practising in Country A dated 24 March 2022 (March 2022 Letter).[19]
[19] CB 235-239.
On 26 August 2022, the Tribunal upheld the Delegate’s Decision.[20]
[20] CB 243.
On 29 August 2022, the Applicant was notified of the Tribunal’s decision.[21]
[21] CB 241.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 254 to 297 of the Court Book.
The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [25] to [46].
The Tribunal did not accept the Applicant’s evidence that the reason for his delay in applying for a protection visa after his arrival in Australia was that he was expecting a favourable court outcome in Country A. The Tribunal made particular note of the Applicant’s 4 year and 9-month delay in applying for a protection visa. The Tribunal found that the Applicant only applied for a protection visa after his student visa was cancelled, and that little weight would be placed on the Applicant’s claimed fear of persecution.[22]
[22] CB 267-268.
The Tribunal concluded that the Applicant had not been charged with offences in connection with his job. In particular, the Tribunal placed particular emphasis on:
(a)The Tribunal did not accept the Applicant’s claims that he was wrongfully accused and convicted of unlawfully exercising his power in respect to his job in Country A, as the Applicant’s evidence was lacking specific detail, as well as directly contracting the country information;[23]
(b)Further, the Tribunal did not accept the Applicant’s claims that he was made responsible for certain equipment in connection with his job in Country A, finding that there was a lack of independent documentary evidence establishing those claims;
(c)The Tribunal concluded that the Applicant had not been subjected to certain training as alleged or convicted as alleged. These findings were made on the basis that there was a lack of documentary evidence relevant to the court proceedings in Country A;[24]
(d)The Tribunal expressed concerns regarding the inconsistencies between the Applicant’s claims about the alleged offences he was charged with and the court cases referred to in the March 2022 Letter; and
(e)The Tribunal placed significant weight on the country information that indicated that a person who is on bail in Country A cannot leave the country. This contradicted the Applicant’s travel history, as he had returned to Country A on several occasions and had left Country A to come to Australia. The Tribunal also placed weight on Country A’s Constitution which provides that every individual has the right to a fair trial.[25]
[23] CB 270.
[24] CB 270.
[25] CB 271.
Following careful consideration of the evidence provided by the Applicant and on the basis of country information, the Tribunal was not satisfied on the basis of its factual findings that the Applicant’s claims did not meet the complementary protection criteria.[26]
[26] CB 270 - 278.
PROCEEDINGS IN THIS COURT
The Application was filed in this Court on 29 September 2022, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 19 December 2022, Orders were made by Registrar Carney of this Court for the First Applicant to file: written submissions, any Amended Application with proper particulars and any additional evidence. That the First Respondent file: the Court Book, written submissions with proper particulars and any additional evidence.
On 17 March 2025, Orders were made by Registrar Cummings of this Court for the First Respondent’s name be amended to Minister for Immigration and Multicultural Affairs and the name of the Second Respondent be amended to Administrative Review Tribunal. For the Applicant to file: written submissions, any Amended Application with proper particulars and any additional evidence. That the First Respondent file: the Court Book, written submissions with proper particulars and any additional evidence.
On 14 April 2025, Orders were made by me, allowing the First Respondent’s solicitor be granted leave to appear and make submissions electronically by Microsoft Teams.
This matter was heard on 12 May 2025 at 10:00am for a Final Hearing before me.
The Applicant relied upon the following documents:
(a)The Application filed 29 September 2022; and
(b)The Affidavit of the Applicant sworn and filed 29 September 2022 (Applicant’s Affidavit).
The Minister relied upon:
(a)The Response, filed 30 November 2022;
(b)The Minister’s Submissions filed 5 May 2025; and
(c)List of Authorities filed 9 May 2025.
Both parties relied on the Court Book.
The Application contains four (4) ground of review (Grounds of Review):
1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the tribunal) which was made on 26 August 2022 and notified on 29th August 2022 affirming a decision of a delegate to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). (Ground 1).
2. An application was made for a Protection visa on 23 December 2016. The delegate refused to grant the visa. (Ground 2).
3. An application was made to the Administrative Appeals Tribunal for review of the decision to refuse the visa and a written Decision and Reasons were provided affirming the decision of the delegate on 26 August 2022. (Ground 3).
4. The Tribunal constructively failed to exercise its jurisdiction. (Ground 4).
Particulars
a. The tribunal allowed itself to be distracted from its proper task by its adoption of the approach of the delegate, an approach evidenced by the delegate’s personal formulation of a summary of claims, and reliance on things which had been said by the applicant to the delegate.
b. It was not open to the tribunal to adopt, depend upon, or rely on any formulation of claims, or upon what might constitute the core of such claims, on the part of the delegate.
c. The reasons of the tribunal display no or no prior basis on which it might be open to the tribunal to decide to treat the delegate’s summary [based on the delegate’s own reasons for selecting, articulating, or excluding facts or factors] as a permissible foundation or as any part of the foundation of the Tribunal’s own judgment.
d. The Tribunal failed to consider the circumstances of the Applicant adequately and has made erroneous conclusions on the evidence put forward by the Applicant’s fear of persecution and/or his assertions of fear stemming from the traumatic series of events in his home country.
e. There was a lack of any reasonable, proper, or legal basis for the findings in paragraph 59 and 60 that the Timing of an application was an indicator of what the member claims that it was; and the member’s selection of possibilities is irrational, and an indicator of prejudice.
f. Furthermore, the Applicants submit the Member was biased in his decision making and made presumptions about the Applicants ability to travel overseas during the period under reference.
g. The decision of the Tribunal is an impermissible hybrid of the approach of the Tribunal and of the formulation of the delegate’s working summary and is accordingly not a decision of the Tribunal according to law or at all.
h. The unexplained adoption by the tribunal of the delegate’s summary as part of the tribunal’s own reasons was unnecessary, impermissible, and constitutes a failure on the part of the tribunal to carry out assessment of the evidence before it to make findings of its own; and further constitute a failure of due process.
i. The decision of the tribunal did not constitute an independent review of the applicant’s application as required by law.
j. The tribunal unfairly and erroneously failed to consider at all the actions and the inactions [including matters which may be characterised as delay] of the applicant in context of the recurrent dilemmas and uncertainties necessarily attending his circumstances and his claim.
k. The tribunal unfairly, erroneously, and impermissibly treated the applicant’s expectations [hopes or opinions] concerning a favourable outcome of his proceeding in [Country A] as a matter going to his veracity.
l. The tribunal’s reasons and findings concerning delay are unfair, unreasonable and erroneous, and do not address relevant matters including the recurrent dilemmas and uncertainties necessarily attending his circumstances and his claim.
m. The tribunal unreasonably and unfairly neglected to take into account the state of judicial independence and judicial legitimacy in [Country A] [as disclosed by attachments to the decision] and the irregular and illegal use of power and authority in [Country A [similarly disclosed] and the abuse of human rights in [Country A] [similarly disclosed].
n. The Tribunal’s decision was, in the circumstances of the Applicants, so unreasonable and unfair as to constitute an excess of jurisdiction and an error of law.
o. The member failed to explain, articulate, or give specific reasons in connection with the weighing up of factors which were required to be considered in the exercise of discretion: in particular, the member failed to set out, grade, or weigh the factors put forward by the Applicants.
p. The Tribunal’s decision was, in the circumstances of the Applicants, so unreasonable and unfair as to constitute an excess of jurisdiction and an error of law.
The Applicants seek orders set out in this application plus costs.
(Words in bold added, otherwise as written subject to anonymisation).
APPLICANT’S SUBMISSIONS
The Applicant did not file written submissions ahead of the hearing.
At the hearing, the Applicant handed up a lengthy written submission. He also made oral submissions. Some of the matters the subject of the written and oral submissions repeated the factual narrative set out in the Tribunal’s Decision. Many of the matters, the subject of the submissions, went well beyond those findings. The written submissions contained references to the substantive law of Country A in an apparent attempt to demonstrate erroneous findings as to the law and fact.
For reasons that are set out below under the heading “Tender”, the matters set out in the submissions that are directed to establishing factual error, both as to the background circumstances and as to the applicable law, are inconsistent with the principles of judicial review. Nevertheless, to the extent relevant, I have had regard to the written and oral submissions when considering whether there has been jurisdictional error.
RESPONDENT’S SUBMISSIONS
Allegation that the Tribunal failed to undertake an independent review (particulars A, B, C, G, H, and I)
The Minister submits that the Tribunal made its own independent assessment of the Applicant’s claims, and it did not solely rely on the Delegate’s findings. The Tribunal’s reasons demonstrate that it considered the Applicant’s protection claims in more detail than the Delegate did.
The Tribunal engaged in detailed analysis of the country information and how it supported the Tribunal’s rejection of the Applicant’s protection claims.
Allegation that the Tribunal Failure to consider the Applicant’s circumstances or the situation in Country A (Particulars D, J and M)
The Minister submits that there is nothing to suggest that the Tribunal ignored, overlooked or misunderstood any cogent evidentiary material which was of central importance to the Tribunal’s ultimate conclusion.
The Minister concedes that the second letter from the Applicant’s lawyer was not referred to in the Tribunal’s reasons. However, a mere failure to expressly deal with an issue is not sufficient to draw an inference that it was not considered.
Allegation that the Tribunal unreasonably considered the Applicant’s delay in applying for protection (Particulars E, K and L)
With respects to the Tribunal’s reliance on the Applicant’s delay in applying for protection due to a favourable outcome from Country A’s courts, the Tribunal found that this claim was inconsistent with his other evidence that he had been advised that his prospects of a successful court outcome were poor. The Tribunal therefore rejected the Applicant’s evidence, and he did not apply for protection upon arriving in Australia because he expected a favourable court outcome.
Bias allegation (Particular F)
The Minister submits that there is an evidentiary burden that the Applicant must overcome before an allegation of bias or apprehended bias can succeed. In the absence of a transcript or evidence of the conduct of the hearing, the Applicant has failed to meet that burden.
There is no material before the Court that suggests that the Tribunal’s decision was affected by bias or apprehended bias.
Allegation of unreasonableness/ illogicality (Particulars N and P)
The Minister submits the Tribunal’s reasoning process is clear.
The Tribunal found that the Applicant’s protection claims were vague, lacking in specific detail and were often inconsistent with country information. There was nothing unreasonable or illogical about the Tribunal’s reliance on these conditions.
Allegation that the Tribunal failed to provide adequate reasons (Particular O)
The Minister submits that similar to the submissions made above about the reasonableness of the Tribunal’s decision, the Tribunal’s reasons were adequate and explained the path of reasoning taken to form an opinion about the legality of the decision.
PRINCIPLES
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[27]
[27] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[28] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[29]
[28] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[29] Yusuf at [82].
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[30] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[31] Different kinds of error may overlap.[32] The categories are not closed.[33]
[30] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[31] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[32] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82].
[33] LPDT at [3].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[34] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[35] It has been described as an “undemanding” standard.[36]
[34] LPDT at [7].
[35] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[36] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
Protection Visas
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) have been satisfied, and to refuse to grant the visa, if not so satisfied.
The criteria that the Applicant was required to satisfy for the grant of a Protection (Class XA) (Subclass 866) visa (Visa) are set out in cll 866.1 to 866.6 in Schedule 2 of the Regulations.
Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about (a) the performance of those functions; or (b) the exercise of those powers. Section 499(2A) of the Migration Act provides that a person or body (which would include the Tribunal) must comply with a direction given under s 499(1).[37]
[37] See Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209 at [65].
Direction 84 is a direction given by the Minister under s 499(1) of the Migration Act concerning decision makers performing functions or exercising powers under ss 65, 414 or 415 of the Migration Act when considering an application for the grant of a Protection visa when revieing a decision to grant a Protection visa.
Unreasonableness
The following authorities concern the role of the court and principles to be applied on judicial review where a challenge is made to the decision maker’s reasoning, findings of fact or conclusion.[38]
[38] Noting that different kinds of error may overlap: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, Brennan CJ, Toohey, McHugh and Gummow JJ confirmed that the proper role of the court on a judicial review was not to review the merits of the administrative decision-maker.[39]
[39] See also Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54].
Kirby J stated (at p 291) that:
The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting inference of an error.
(emphasis added) (footnotes omitted)
In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf), McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) held (at [69]) that s 430 of the Migration Act obliged the Tribunal to set out findings on material questions of fact to the conclusion it reached. It does not require the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make.
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593, the Full Court of the Federal Court (French, Sackville and Hely JJ) stated (at [46] and [47]):
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
(emphasis added)
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS), Crennan and Bell JJ stated (at [130] and [131]):
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.
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.
(emphasis added)
In Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (SZJSS), French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ held (at [33]) that the weighing of evidence was a matter for the Tribunal.
In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, the Full Court of the Federal Court (Kenny, Griffiths and Mortimer JJ) stated (at [49] and [50]):[40]
The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made ... Representing as it does what the Tribunal itself considered important and material, what is present – and what is absent – from the reasons may in a given case enable a Court on review to find jurisdictional error ...
... The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
(emphasis added)
[40] At [49] – [50].
In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, Robertson J held (at [77] and [111]) that the question of whether a failure to consider evidence gives rise to jurisdictional error:
… is a case specific inquiry and it is not one which should be analysed by reference to fixed categories or formulas, to the effect that a decision within a category or formula is always or is never affected by jurisdictional error…the fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error.
(emphasis added)
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), Hayne, Kiefel and Bell JJ stated (at [72]):
The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that “all these things run into one another”. Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
(emphasis added)
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J stated (at [52], [53] and [55]):
As Robertson J put it in Minister for Immigration and Citizenship v SZRKT(2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality 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 & Citizenship (2012) 202 FCR 1 (at 22–23 [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.
…
…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].
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].
(emphasis added)
In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, Allsop CJ (with whom Wigney J agreed) stated (at [11] – [12]):
The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.
(emphasis added)
In Minister for Home Affairs v DUA16 (2020) 271 CLR 550, Kiefel CJ, Bell, Keane, Gordon and Edelman JJ stated (at [26]):
A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power".
(footnotes omitted) (emphasis added)
In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, Kiefel CJ, Keane, Gordon and Steward JJ stated (at [27])
None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision maker’s reasons disclose that the decision maker ignored, overlooked or misunderstood relevant facts and materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
(footnotes omitted)
CONSIDERATION
Grounds 1, 2 and 3 contain matters of factual narrative without identifying any alleged jurisdictional error in the Tribunal’s Decision.
Ground 4 contains the allegation that the Tribunal “constructively failed to exercise its jurisdiction”, or in other words, committed jurisdictional error.
It is convenient to address each of the particulars to Ground 4 separately or in groups.
Particulars (a) to (c) and (g) to (i)
Particulars (a) is that:
The tribunal allowed itself to be distracted from its proper task by its adoption of the approach of the delegate, an approach evidenced by the delegate’s personal formulation of a summary of claims, and reliance on things which had been said by the applicant to the delegate.
Particular (b) is that:
It was not open to the tribunal to adopt, depend upon, or rely on any formulation of claims, or upon what might constitute the core of such claims, on the part of the delegate.
Particulars (c) is that:
The reasons of the tribunal display no or no prior basis on which it might be open to the tribunal to decide to treat the delegate’s summary [based on the delegate’s own reasons for selecting, articulating, or excluding facts or factors] as a permissible foundation or as any part of the foundation of the Tribunal’s own judgment.
Particular (g) is that:
The decision of the Tribunal is an impermissible hybrid of the approach of the Tribunal and of the formulation of the delegate’s working summary and is accordingly not a decision of the Tribunal according to law or at all.
Particular (h) is that:
The unexplained adoption by the tribunal of the delegate’s summary as part of the tribunal’s own reasons was unnecessary, impermissible, and constitutes a failure on the part of the tribunal to carry out assessment of the evidence before it to make findings of its own; and further constitute a failure of due process.
Particular (i) is that:
The decision of the tribunal did not constitute an independent review of the applicant’s application as required by law.
Particulars (a) to (c) and (g) to (i) involve a challenge to the use by the Tribunal of what is described as “the delegate’s personal formulation of a summary of claims”. The nub of the Applicant’s claim is that the Tribunal did not conduct an independent review.
The Tribunal’s Decision reproduced the delegate’s summary of claims at [26], but recorded its own extensive factual findings particularly at [28] to [46] under the heading “Applicant’s Evidence”, at [55] to [60] under the hearing “Delay”, at [61] under the hearing “The Accepted Facts” and at [71] to [97] under the hearing “Assessment of the Applicant’s claims”. The footnotes suggest that the evidence recorded has a variety of sources. The delegate’s findings and those of the Tribunal are not co-extensive, for example, in relation to claims of training and harm[41] and the approach to the Country information.[42]
[41] Compare CB211-122 (delegate) with CB258 (at [75]) (Tribunal’s Decision).
[42] See for example, the Tribunal’s Decision at [74], [79] and [89] – [91].
Having regard to the whole of the Tribunal’s Decision when compared with the Delegate’s Decision, I do not accept the various contentions that the Tribunal impermissibly relied on the delegate’s summary of claims, or used it in place of its own fact finding role, or used it as a “foundation” for its factual findings, or created an impermissible “hybrid” of its own factual findings and those of the delegate, or failed to conduct and “independent review” of the evidence. To the contrary, I consider that the Tribunal’s Decision evidences an independent “review” of the material before it.
In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Griffiths, White and Bromwich JJ said (at [48]) that “a finding by the Court that the [decision-maker] has not engaged in an active intellectual process will not lightly be made”.[43]
[43] See also In CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131 Allsop CJ, Kenny and Snaden JJ at [76].
I am not satisfied that jurisdictional error is demonstrated by reference to Particulars (a) to (c) and (g) to (i).
Particular (d), (j) and (m)
Particular (d) is that:
The Tribunal failed to consider the circumstances of the Applicant adequately and has made erroneous conclusions on the evidence put forward by the Applicant’s fear of persecution and/or his assertions of fear stemming from the traumatic series of events in his home country.
Particular (j) is that:
The tribunal unfairly and erroneously failed to consider at all the actions and the inactions [including matters which may be characterised as delay] of the applicant in context of the recurrent dilemmas and uncertainties necessarily attending his circumstances and his claim.
Particular (m) is that:
The tribunal unreasonably and unfairly neglected to take into account the state of judicial independence and judicial legitimacy in [Country A] [as disclosed by attachments to the decision] and the irregular and illegal use of power and authority in [Country A] [similarly disclosed] and the abuse of human rights in [Country A] [similarly disclosed].
The Minister accepts that overlooking cogent evidential material that was of central importance to the Tribunal’s ultimate findings may constitute jurisdictional error.[44] A decision made that overlooks such material may be “manifestly unreasonable”.[45] The Minister also notes that it is unnecessary for the Tribunal to refer to every piece of evidence and every contention.[46]
[44] Minister’s submissions at [28].
[45] See Li per Hayne, Kiefel and Bell JJ (at [72]), above, citing Mason J.
[46] Minister’s submissions at [28].
After the hearing before the Tribunal, the Applicant’s lawyer submitted further evidence in the form of the March 2022 Letter (CB239), which was a letter from the Applicant’s Attorney from Country A, addressed to the “Civil Court” concerning two cases; one pending and one where judgment had been given.[47] The letter purported to certify certain details of the two cases.
[47] CB 239.
The Minister concedes that the March 2022 Letter was not expressly referred to in the Tribunal’s Decision but noted that an earlier letter (SCB26) from the same Attorney is referred to in the Tribunal’s Decision (at [82]; see also [47](m) and [48]).[48] The Tribunal’s decision in relation to the earlier letter noted that no formal documentation had been given in respect of either case. The Tribunal’s Decision analyses that evidence, including its shortcomings, in reaching a conclusion at [95], that the Applicant was not charged with offences as claimed.
[48] CB 39.
I accept the Minister’s submission, that the mere failure to refer to the March 2022 Letter is not sufficient for the court to draw an inference that it was not considered. The critical shortcoming in the Applicant’s evidence, as found by the Tribunal, was that there was no formal documentation to corroborate the Applicant’s claims, and the Tribunal did not accept the Applicant’s explanation for that absence. In circumstances where the March 2022 Letter did not overcome the main shortcoming identified by the Tribunal and noting the close correspondence between the information in the March 2022 letter and the earlier letter, I am unable to draw the conclusion that the material contained in was not considered by the Tribunal.[49] For the same reason, if I had concluded that the Tribunal had not considered the March 2022, that failure would not have been material to the Tribunal’s Decision.[50]
[49] WAEE at [47].
[50] LPDT at [7].
The allegations of inadequate consideration of the Applicant’s circumstances and erroneous conclusions (in Particular (d)), are not otherwise apparent on the face of the Tribunal’s Decision. In the absence of particulars identifying which “circumstances” were inadequately considered, or what conclusions of fact were erroneous, and why, it is difficult to analyse this matter further. Similarly, the allegation of “failure to consider” (in Particular (j)) is not apparent on the face of the Tribunal’s Decision. I do not consider there to be merit in Particulars (d) or (j).
Particular (m) contains an allegation that the Tribunal failed to take into account the state of “judicial independence and judicial legitimacy”, the “irregular and illegal use of power” and the “abuse of human rights” in County A. Reference is made to the attachments to the decision as evidencing those matters, which is presumably a reference to a Department of Foreign Affairs and Trade (DFAT) report (Annexure A).
Accepting that the DFAT report includes matters that may be broadly characterised in the manner contended for in Particular (m), and that they are not otherwise referred to in the Tribunal’s Decision, does not compel the conclusion that the Tribunal committed jurisdictional error. First, the Tribunal stated (at [49]) that it did take into account country information assessments prepared by the DFAT. Second, as noted above, the Tribunal is not required to refer to every piece of evidence and every contention in the reasons. Third, as Robertson J said in SZRKT “the fundamental question must be the importance of the material to the exercise of the Tribunal's function”. I am not satisfied that the matters referred to in Particular (m), which are general in nature and not specific to the Applicant’s case, required consideration beyond that which is recorded in the Tribunal’s Decision.
I am not satisfied that jurisdictional error is demonstrated by reference to Particular (d) (j) and (m).
Particulars (e), (f), (k) and (l)
Particular (e) is that:
There was a lack of any reasonable, proper, or legal basis for the findings in paragraph 59 and 60 that the Timing of an application was an indicator of what the member claims that it was; and the member’s selection of possibilities is irrational, and an indicator of prejudice.
Particular (f) is that:
Furthermore, the Applicants submit the Member was biased in his decision making and made presumptions about the Applicants ability to travel overseas during the period under reference.
Particular (k) is that:
The tribunal unfairly, erroneously, and impermissibly treated the applicant’s expectations [hopes or opinions] concerning a favourable outcome of his proceeding in [Country A] as a matter going to his veracity.
Particular (l) is that:
The tribunal’s reasons and findings concerning delay are unfair, unreasonable and erroneous, and do not address relevant matters including the recurrent dilemmas and uncertainties necessarily attending his circumstances and his claim.
Particulars (e), (f), (k) and (l) appear to be principally directed towards Paragraphs [59] and [60] of the Tribunal’s Decision, particularly its reasoning, findings and conclusion on the critical question of the First Applicant’s delay in making application for a protection visa.
The Tribunal at [59] did not accept the First Applicant’s evidence as to his reason for not applying for a protection visa upon his arrival in Australia was because he expected a favourable outcome of the Country A proceedings. The reasoning in support of that conclusion is set out in [59], including the advice to look for a “suitable exit”, the fact that the First Applicant was on bail, and the elevation of charges.
The Tribunal at [60] concluded that the First Applicant did not have a reasonable explanation for not making a protection visa application upon his arrival in Australia was also one that was open to it, including by reference to [59]. I do not accept the contention that the conclusion lacked a “reasonable, proper, or legal basis”.
In reference to Particular (f), I am unable to discern any error in the manner in which the Tribunal dealt with the First Applicant’s ability to travel in its reasoning; both from Country A, while on bail, and while in Australia. The primary issue addressed by paragraphs [59] and [60] was the issue of delay in the Application for a Protection visa. The references to the First Applicant’s travel formed part of the context of that delay. For completeness, I should record that I do not read Paragraph (f) as an allegation of actual or apprehended bias; noting that there would appear to be no basis for an allegation in any event.[51]
[51] See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Hot Holdings Pty Ltd v Creasey (2002) 210 CLR 438 per McHugh J (at 460) and Kirby J (at 480) and Sharma v Minister for Immigration and Border Protection [2017] FCFCA 227 at [21] to [23].
Particulars (e), (f), (k) and (l) might be characterised as a challenge to the Tribunal’s findings as to the First Applicant’s credibility.
In Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 74 ALJR 405, McHugh J (at [67]) rejected a challenge to the Tribunal’s adverse finding concerning the prosecutor’s evidence on the basis that “a finding on credibility… is the function of the primary decision maker par excellence.”.
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J stated:
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.
(emphasis added)
In ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 the Full Federal Court (Griffiths, Perry and Bromwich JJ) summarised the relevant principles (discussed in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496) at [83]:
McHugh J’s oft quoted comments in Ex parte Dumairajasingham (which were cited by the primary Judge in the proceedings here) to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;
the issue whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT at [77] per Robertson J);
in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and
without derogating from what is said above regarding the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Dumairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:
•failure to afford procedural fairness;
•reaching a finding without a logical or probative basis;
•unreasonableness; and/or
•other grounds as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] 233 FCR 451; [2015] FCA 1089 at [20]–[21] and in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15 at [40]–[42].
In BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 the Full Court stated (at [34]):
…Furthermore, findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error: SZMDS at [132] (Crennan and Bell JJ). This is particularly so where, relevantly, the adverse credibility finding was a critical step in the Tribunal's decision that it was not satisfied that an applicant met the criteria for the grant of a visa: DAO16 at [30(4)] (approving Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [56] (Wigney J)).
(emphasis added)
For the reasons set out above, I am unable to discern error by the Tribunal in the way in which it dealt with the question of the Applicant’s credibility, including the Tribunal’s treatment of the Applicant’s “expectations” concerning a favourable outcome of his proceeding in Country A.
I am not satisfied that jurisdictional error is demonstrated by reference to Particulars (e), (f), (k) or (l).
Particular (o)
Particular (o) is that:
The member failed to explain, articulate, or give specific reasons in connection with the weighing up of factors which were required to be considered in the exercise of discretion: in particular, the member failed to set out, grade, or weigh the factors put forward by the Applicants.
Section 430(1) (repealed) of the Migration Act provide that where a Tribunal makes its decision on a review, it must, subject to certain exceptions, make a written statement that:
(a)sets out the decision of the Tribunal on review;
(b)sets out the reasons for decision; and
(c)sets out findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
(e)…
(f)records the day and time the statement is made.
An obligation to give a written statement of reasons requires that the decision-maker “must explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”.[52]
[52] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [55].
In Liang, Brennan CJ, Toohey, McHugh and Gummow JJ said (at [31]) that:
“the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”
Non-compliance with s 430(1) of the Migration Act does not, of itself, establish jurisdictional error.[53] But, non-compliance with those provisions, such as non-compliance with the obligation to refer to evidence or other material on which the decision is based, may evidence jurisdictional error, for example, a constructive failure to exercise a review function.[54]
[53] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609 at [70] (per McHugh J).
[54] Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 per Kenny J (at [98]).
I do not accept the contention that the Tribunal failed to explain, articulate, or give specific reasons in connection with the weighing up of factors which were required to be considered in the exercise of discretion. Having regard to the decision as a whole, I am satisfied that the Tribunal’s reasons gave a sufficient explanation of “the actual path of reasoning in sufficient detail” to enable the court to determine whether there was error.
I am not satisfied that jurisdictional error is demonstrated by reference to Particulars (o).
Particulars (n) and (p)
Particular (n) and (p), which are identical, are that:
The Tribunal’s decision was, in the circumstances of the Applicants, so unreasonable and unfair as to constitute an excess of jurisdiction and an error of law.
Particulars (n) and (p) claim that the Tribunal’s decision was “so unreasonable and unfair” as to constitute jurisdictional error. The relevant principles, concerning unreasonableness, illogicality and irrationality are set out above at [60].
Particulars (n) and (p), whilst described as “particulars” are in fact, conclusions devoid of particularity. In the circumstances of a particular case, the lack of particulars given in respect of a ground of review may be “a sufficient basis to dismiss it”.[55] In circumstances where the applicant is unrepresented, I have taken the additional step of considering whether (arguable) jurisdictional error can be discerned from the Tribunal’s Decision. I also asked the Applicant to expand upon Particulars (n) and (p) in oral submissions. I am unable to discern error or arguable error, by reference to Particulars (n) and (p), the Applicant’s oral submissions, or my own consideration of the Tribunal’s Decision.
[55] NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]. See also Twomey v Que 5 Pty Ltd [2023] FCA 1155 at [25]; MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25]; DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [4] ‑ [8]; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
I will treat Particulars (n) and (p) as a summary of the other grounds that are addressed, separately, above. For the reason set out above, I am not satisfied that jurisdictional error is demonstrated by reference to Particulars (n) or (p).
Tender
During his submissions, the Applicant sought to tender three documents in evidence that were in the nature of legislation, both in the language of Country A and in English. I marked those documents MFI2A, MFI3A and MFI4A.
I ruled that the documents were not to be admitted into evidence and indicated that I would give reasons for that ruling as part of my judgment.
In Waterford v Commonwealth (1987) 163 CLR 54, Brennan J said (at 77–78):
A finding by the A.A.T. on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the A.A.T. Act confers on a party to a proceeding before the A.A.T. a right of appeal to the Federal Court of Australia “from any decision of the Tribunal in that proceeding” but only “on a question of law”. The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.
In MZXLD v Minister for Immigration & Citizenship [2007] FCA 1912, Gordon J stated (at [10]–[11]):
The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities: see Waterford v Commonwealth (1987) 163 CLR 54 at 77–78 (per Brennan J); Servos v Repatriation Commission (1995) FCR 377 at 385–386 (per Spender J); Phillips v Cmr for Superannuation [2005] FCAFC 2 at [29]–[31] (per Spender, Madgwick and Finkelstein JJ); and SZINB v Minister for Immigration & Multicultural Affairs [2006] FCA 1627 at [23] (per Cowdroy J). The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application. The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Additional evidence not before the RRT may, however, be admitted in exceptional cases where the material is required to make good a contention that raises a question of law, as distinct from a question of fact: see Phillips at [31] (per Spender, Madgwick and Finkelstein JJ); and see STKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 546 at [15] and [21]–[22] (per Selway J); M211 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 660 at [30] (per Crennan J); NASB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 24 at [54] (per Beaumont, Lindgren and Tamberlin JJ). A failure to provide a party with natural justice is a contention of the type that may, in the discretion of the reviewer, be subject to further material: Percerep v Minister for Immigration & Multicultural Affairs (1998) FCA 1088 at [15] – [16] (per Weinberg J).
In Minister for Immigration & Border Protection v Tesic (2017) 251 FCR 23, the Full Court held (at [55]) that it was not open to the primary judge to admit the document as fresh evidence and make findings of fact which contradicted those of the decision-maker.
The apparent purpose of the tender was to challenge the findings of the Tribunal of fact (concerning the law of Country A) so as to demonstrate factual error. Having regard to the authorities set out above, I consider that the documents sought to be tendered are irrelevant to the issues that are raised in this Application for judicial review. Pursuant to s 56(2) of the Evidence Act 1995 (Cth) evidence that is not relevant is inadmissible. The Minister’s objection to the tender of them in evidence is upheld.
Anonymisation of Sensitive Information
The name of the Applicant has been anonymised in accordance with s 91X of the Migration Act.
Section 91X of the Migration Act provides that a federal court must not publish the person’s name in a proceeding relating to their application for a protection visa or related bridging visa, or to the cancellation of such a visa.
Section 91X of the Migration Act was introduced in 2001 by the Migration Legislation Amendment Act (No 6) 2001 (Cth). The Explanatory Memorandum provides:
This provision is required to minimise the risk that publication of court proceedings might identify individuals as having applied for protection in Australia. Such publication can create a need for protection for the litigants and also place their family and colleagues overseas at risk. The new section does not prevent the Minister or other litigants from seeking court orders for further confidentiality in particular cases, for example to suppress any information which may identify the litigants.
An inadvertent breach of s 91X of the Migration Act by the court when publishing a judgment on judicial review does not, itself, constitute jurisdictional error.[56]
[56] AVN20 v Federal Circuit Court of Australia [2020] FCA 584 at [108].
Section 91X of the Migration Act is limited in its application to the publication of a person’s name and not to other personally identifying information.[57]
[57] EAU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2086.
In MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [5], the Full Court has cautioned, that in preparing reasons for decision in cases to which s 91X applies, courts should be careful not to include details that might identify a person and therefore frustrate the purpose of s 91X:
The primary judge did not set out the appellant’s claims in detail, given that he was a citizen of the small island nation of São Tomé and Príncipe and the likelihood that a recitation of his claims for asylum may enable him to be identified, thereby frustrating the apparent purpose of s 91X of the Act: reasons below at [5]. We adopt the same approach for the reason articulated by her Honour and emphasise the importance of ensuring that such potentially identifying features are not present in the published reasons of a court where s 91X applies to the proceeding.
The approach endorsed by the Full Court would appear to require circumspection by a decision maker when referring to personally identifying information in a judgment, rather than use of a suppression or non-publication order. Whether a suppression or non-publication order is required will depend on the circumstances of the case. Whichever approach is taken, due regard would need to be had to the principles of open justice,[58] but in a statutory context that provides, by s 91X of the Migration Act, for anonymisation of party names in protection visa cases.
[58] See Australian Broadcasting Corporation v Parish [1980] ATPR ¶40-153; Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) (2022) 294 FCR 221 at [23] – [31].
Section 136 of the Federal Circuit and Family Court of Australia Act 2001 (Cth) (FCFCOA Act) provides, subject to certain exceptions, that the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) must be exercised in open court.
Section 232(1) of the FCFCOA Act provides that the Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non-publication order on its own initiative or on the application of party or interested person. A suppression order or non-publication order may be made at any time during the proceeding or after it has been heard. A suppression or non-publication order may be made to prevent a breach of s 91X or the publication of personally identifying information.[59]
[59] AWU15 v Minister for Immigration and Border Protection (No 2) [2019] FCA 2132. See also the Federal Court Guide to the Anonymisation of Personal and Sensitive Information.
During the hearing, the Applicant raised a concern that the fact of his making an application for asylum might itself create enhanced risks for him in Country A. There are a number of features of the Applicant’s case, that if published, might enable a person reading the judgment to deduce the identity of the Applicant. To address that concern, I have referred to the Applicant’s country of origin as “Country A” and avoided specificity in other limited respects.
In order to give the parties, the opportunity to address the question of anonymisation further, prior to my reasons of judgment being published generally, I propose to make the following Orders:
(a)Pursuant to s 232(1) of the FCFCOA Act, and on the grounds specified in s 231(1)(a) of the Act, these reasons for judgment not be published other than to the parties and their legal representatives prior to 12 June 2025.
(b)By 4:00 p.m. on 29 May 2025, the applicant advise the court in writing:
(i)Whether they consider that parts of the reasons for decisions ought to be anonymised or suppressed, and brief reasons as to why.
(ii)Identify those words that they consider ought to be anonymised or suppressed, and the proposed manner of the anonymisation or suppression.
(c)By 4:00 p.m. on 5 June 2025, the first respondent advise the court in writing if there is objection to the proposal for anonymisation or suppression.
(d)The parties have liberty to seek to vary order (a).
I consider that this interim order is necessary in the interests of justice to ensure that Applicant, who may be affected by the publication of my reasons, is given a proper opportunity to make submissions in relation to suppression of the reasons for decision, or, as is more likely to be the case, redaction or anonymisation, of parts of those reasons. It is appropriate that the purpose and intent of s 91X of the Migration Act not be undermined by the publication of details that enable the applicant to be identified.
CONCLUSION
As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[60] the Application for review must be dismissed.
[60] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [113].
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minster sought costs in the sum of $8,371.30 being the scale amount.[61] I am satisfied that costs ought to follow the event,[62] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[63]
[61] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.
[62] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[63] Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.
I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 22 May 2025
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