DJO17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 581
•1 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DJO17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 581
File number(s): MLG 1628 of 2017 Judgment of: JUDGE EGAN Date of judgment: 1 July 2024 Catchwords: MIGRATION LAW – Whether the Authority had acted irrationally in making its findings – whether the Authority had erroneously applied the provisions of s. 473DD of the Migration Act – whether the Authority had failed to conduct a proper review of the evidence before it – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) s. 5H(1), s. 5J, s. 473CB, s. 473DC, s. 437 DD Cases cited: AUS17 v Minister for Immigration and Border Protection & Anor (2020) 269 CLR 494
CED15 v Minister for Immigration and Border Protection [2018] FCA 451
DYS16 v Minister for Immigration and Border Protection
Tsvetnenko v United States [2019] FCAFC 74
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submission/s: 27 April 2022 Date of hearing: 27 April 2022 Place: Brisbane Solicitor for the Applicant: Appearing on his own behalf Counsel for the First Respondent: Mr V. Murano Solicitor for the First Respondent: Australian Government Solicitors ORDERS
MLG 1628 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DJO17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
1 JULY 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The Amended Application filed on 30 March 2022 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.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
INTRODUCTION
The applicant is a male citizen of Sri Lanka and is of Tamil ethnicity, his having lived in the Jaffna District, Northern Province.
The applicant arrived in Australia on 23 October 2012 as an unauthorized maritime arrival.
On 24 May 2016, the applicant lodged an application for a Class XE, Sub-Class 790 Safe Haven Enterprise Visa (SHEV).
On 15 November 2016, a delegate of the Minister refused to grant the visa application on the basis that the applicant did not face a real chance of serious harm, or a real risk of significant harm, if he was to return to Sri Lanka.
On 13 July 2017, the Immigration Assessment Authority (‘the Authority’) affirmed the decision of the delegate.
At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).
At [4] of its reasons, the Authority recorded that on 12 January 2017, the Authority had received a submission from the applicant which was not considered to constitute new information under s. 473DC of the Act, because it comprised argument and referred to claims and evidence that had been before the delegate.
At [5] of its reasons, the Authority recorded that the applicant had provided it with a letter from the Kurunagar Fishing Development Society dated 14 December 2012 which referred to “uncited country information” dated 5 October 2016, neither of which had been provided to the delegate. The applicant further made claims as follows:
•The applicant’s uncle was tortured by the Sri Lankan Navy and died in July 2015.
•A cousin of the applicant came to Australia by boat in 2009 and was accepted as a refugee.
•The applicant’s brother-in-law and another cousin were harassed by the Sri Lankan authorities and came to Australia by boat (date unspecified).
At [6] – [9] of its reasons, the Authority recorded that no explanation had been given by the applicant as to why the documents provided to it had not been provided to the delegate, nor any explanation as to why the three (3) additional claims had not been earlier raised by the applicant. Further, the Authority recorded that there was no explanation or submission as to why such documentation or additional claims constituted credible personal information. In those circumstances, the Authority found that it was not satisfied that the country information could not have been provided to the delegate. The Authority was also not satisfied that the new information was credible personal information. It was also noted that no reason was advanced as to why the applicant had never previously claimed that he had an uncle, a brother-in-law, or a cousin who had come to the adverse attention of the Sri Lankan authorities. The Authority did not consider the documents or new claims on the basis that they did not constitute new information which it was required to consider. The Authority did not err in doing so. [1]
[1] CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [21] – [24] per Thawley J
At [10] of its reasons, the Authority recorded that it had obtained new information, namely an updated DFAT country information report for Sri Lanka published on 24 January 2017. The Authority was satisfied that there were exceptional circumstances justifying its consideration of such new information.
At [11] of its reasons, the Authority set out the applicants claims as follows:
•The applicant is a Tamil male from Jaffna District in the Northern Province;
•In around 1995, the applicant and his family were displaced as a result of the conflict;
•The applicant’s sister was a member of the Liberation Tigers of Tamil Eelam (LTTE);
•In around 2006, the applicant was detained and physically assaulted by the Sri Lankan authorities under suspicion of having links to the LTTE;
•Following this, members of the Eelam People's Democratic Party (EPDP) searched for the applicant;
•The applicant resided in Qatar from 2006 until 2008;
•Upon return from Qatar, the applicant was assaulted at Colombo Fort railway station and had his passport and cash stolen;
•From 2008 until 2009 the applicant remained in hiding because the EPDP were searching for him;
•The applicant resided in Saudi Arabia from September 2009 until May 2012;
•Upon return from Saudi Arabia, the EPDP continued to search for the applicant;
•The applicant departed Sri Lanka by boat in September 2012;
•After the applicant left Sri Lanka, the police and/or the EPDP have continued to search for the applicant and his younger brothers;
•If returned to Sri Lanka, the applicant fears harm from the SLA, the EPDP, and the police on account of:
- his profile as a young Tamil male from the north of Sri Lanka
- his imputed LTTE connections, including familial connections
- his illegal departure from Sri Lanka
- his asylum application in Australia.
At [12] – [13] of its reasons, the Authority duly set out what constituted a refugee under the provisions of s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under s. 5J of the Act.
On 27 July 2017, an Originating Application for Review of the decision of the Authority was filed on behalf of the applicant in this Court’s registry.
On 30 March 2022, the applicant filed an Amended Application for Review, the grounds of which were as follows:
1.The IAA's finding that the applicant was not a person who is closely related to a person with LTTE links was irrational, as it is irreconcilable with the IAA's acceptance that the applicant's sister was a member of the L TTE during the civil war.
2.The IAA failed to consider one or more of the applicant's claims, or alternatively, if those claims are considered to be new information, the IAA failed to assess the new information against the criteria specified in s 4 73OD of the Migration Act.
Particulars
(a) The IAA failed to consider the applicant's claim that he would be harmed due to his imputed political opinion that Tamils' freedom is denied by the Sri Lankan government.
(b) The IAA failed to consider the applicant's claim that the Prevention of Terrorism Act meant that he could be detained and jailed at any time with no reason given or access to a lawyer.
3.The IAA's finding that the applicant's claims to have had four relatives travel to Australia due to similar harassment by the Sri Lankan authorities were not credible constituted a misunderstanding or a failure to perform the statutory task under s 473OD of the Migration Act, or alternatively, it was unreasonable of the IAA not to seek new information about the named persons before finding that the claims were not credible.
4.The IAA's reliance on supposed inconsistencies in the applicant's evidence constituted an unreasonable approach to the IAA's task, in that some of the supposed inconsistencies relied on were not inconsistencies at all, and others could not properly form the basis of the IAA's adverse credit findings when understood in their proper context.
A hearing proceeded before the Court on 27 April 2022. After the hearing, the normal administrative procedures within Chambers were not followed, namely the preparation and saving of a judgment template, which, if saved, would have flagged that judgment in respect of the proceeding was to be handed down in a timely manner. The absence of the handing down of judgement was only brought to the Court’s attention on 26 June 2024, upon the receipt of a letter from the lawyers for the first respondent enquiring as to when judgement might be handed down. In circumstances where the Court generally hands down judgments within a month of a hearing in matters such as the present, it came as a surprise not only that the judgment was outstanding, but also that it had taken so long for the absence of a judgement to be brought to the Court’s attention.
The applicant appeared on his own behalf at the hearing before the Court. No written submissions were filed on behalf of the applicant. The applicant’s oral submissions at the hearing, as recorded in the Court’s notes, related to the applicant’s dissatisfaction with his representation during the review process. Those submissions were unrelated to the grounds of review relied upon at the hearing.
The Court is satisfied that the handing down of the Court’s reasons for judgment has not been affected by the delay in the handing down of judgement.
Ground 1 was a claim that the Authority’s finding that the applicant was not a person closely related to another person with LTTE links was irrational, on the basis that it was irreconcilable with the Authority’s “acceptance that the applicant’s sister was a member of the LTTE during the civil war”. There is no merit to such claim.
First, an applicant must meet a high bar in order to establish illogicality or irrationality on the part of a decision maker. In SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210, when discussing whether jurisdictional error had been demonstrated where some factual findings had been made which were said to be either irrational or illogical, Wigney J, at [52] - [56] and [61], said:
“[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
[53] The Minister submitted that a decision of the Tribunal can only be overturned on the basis of illogicality or irrationality if it is shown that the end result is one which no logical or rational decision-maker could arrive at. The submission appeared to be that, where a decision is challenged on the basis of illogicality or irrationality, the reviewing court should decide for itself whether the end result was irrational on the materials that were before the decision-maker, as opposed to whether the decision-maker’s reasoning was illogical or irrational. This was said to flow from the judgment of Crennan and Bell JJ in SZMDS.
[54] The Minister’s submission in that regard is rejected. The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
[56] An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
…
[61] In all the circumstances, it was not at all illogical, irrational or unreasonable for the Tribunal to have regard to the fact that Mr B said nothing in the biodata interview concerning the Tamil Tigers in assessing the credibility of his claims as they were later developed.”
Second, at [39] of its reasons, the Authority considered the evidence before it in a considered and reasonable way, saying as follows:
“[39] I have accepted that the applicant’s sister was a member of the LTTE until around 2000. Although the details and level of his sister’s LTTE involvement is unknown, country information in the referred materials indicates that persons who are dependant or otherwise closely related to persons with certain LTTE links may be in need of international protection. However, on the evidence before me, I am not satisfied that the applicant is a person with such a profile and there is no evidence before me that indicates that the applicant has or will come to the adverse attention of the Sri Lankan authorities or is at risk of harm in Sri Lanka on account of his sister’s profile. The applicant’s evidence is that his sister is not facing any ongoing problems with the Sri Lankan authorities on account of her previous LTTE involvement and I am not satisfied that the applicant previously came to the adverse attention of the Sri Lankan government on account of his sister’s prior LTTE involvement. As noted above, the applicant had several interactions with the Sri Lankan authorities since 2000 has not advanced any claim that he has had difficulty on account of his sister’s past. Accordingly, I am not satisfied that the applicant faces a real chance of serious harm in Sri Lanka due to his sister’s prior LTTE involvement.”
If there was evidence that the applicant’s sister had been harmed or harassed in Sri Lanka by reason of her former LTTE involvement, the applicant’s claim may have had some merit, but in the absence of any such evidence, there was no basis for any claim based upon the applicant's sister’s former LTTE interaction. The applicant did not otherwise have a high enough profile for him to have come to the attention of the authorities. The Authority did not err in that regard.
Ground 2 was a claim that the Authority had failed to properly assess the information provided to it by the applicant by reference to the provisions of s. 473DD of the Act, which section relevantly provided as follows:
MIGRATION ACT 1958 - SECT 473DD
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The references to a denial of freedom to Tamils, and the detention of Tamils, as set out in 2(a) and 2(b) of the Amended Application for Review, arose out of the sending of the 12 January 2017 statement of the applicant to the Authority – in particular, to paragraphs 10 and 12 of such statement. [2] As to the matters raised in paragraphs 10 and 12 of such statement, it is of note that the Authority considered but rejected those claims of the applicant. At [37] – [38] of its reasons, the Authority found as follows:
“[37] I acknowledge that country information indicates that the EPDP’s paramilitary wing may have been active in the applicant’s home region between 2006 and 2012 and on this basis I accept it is plausible that the applicant travelled to Qatar in 2006 due to a fear of harm from the EPDP. However, in light of the above noted inconsistencies in the applicant’s evidence as to when and how often he came to the adverse attention of the EPDP, I do not accept that he had an adverse profile with the EPDP as claimed. I do not accept that the applicant came to the adverse attention of the EPDP prior to his travel to Qatar in 2006. I also prefer the applicant’s initial evidence in the entry interview that his passport issued in 2006 is at home in Sri Lanka. I do not accept that the applicant’s 2006 issued passport was stolen at Colombo Fort station or in a lodge in 2008 and I reject the applicant’s claims that he came to the adverse attention of one or more people while attempting to return to Jaffna at that time. Further, I do not accept that between 2008 and 2009 the applicant was ‘in hiding most of the time’ or that the EPDP came looking for him. According to information provided by the applicant in his SHEV application he was employed in an ongoing capacity as a fisherman between 2008 up until his departure to Saudi Arabia in September 2009. Further, given the applicant was able to obtain a passport in 2006 and in 2008, and travel in and out of Sri Lanka without difficulty, leads me to conclude that he was not a person of adverse interest to the Sri Lankan authorities, including the police and the SLA, between 2006 and 2012 as claimed. I also do not accept that the EPDP or the police came in search of the applicant in May 2012. I expect that if the applicant had come to the adverse attention of the EPDP in 2012 just prior to his departure from Sri Lanka that he would have mentioned this significant event only a few months later in the entry interview when he was asked why he left Sri Lanka – particularly in circumstances where the applicant now claims was one of the primary reasons that led to his decision to leave Sri Lanka. Rather, in the entry interview, the applicant indicated that he left Sri Lanka in 2012 because the police investigated his family, and had threatened to shoot the applicant, because his sister lived in a LTTE area – a claim that was not advanced in his SHEV application. Overall, I conclude the applicant has fabricated the claimed events of 2006 to 2012 to enhance his claims for protection. I reject the applicant’s claims that he had an adverse profile with the EPDP, the SLA or the police in Sri Lanka. I also reject the applicant’s claims that the EPDP continue to look for the applicant and his younger brothers since he departed Sri Lanka.”
“[38] I have accepted it as plausible that the applicant left Qatar in 2006 due to fear of coming to the adverse attention of the EPDP. However, there is no evidence before me to indicate that the applicant had an adverse profile with the EPDP, the police, the SLA, or any other arm of the Sri Lankan government. Accordingly, I am not satisfied that the applicant faces a real chance of serious harm in Sri Lanka on that basis.”
[2] Court Book (CB) p. 160.
The Authority carried out an assessment of the information provided to it by the applicant in the context of its findings about inconsistencies in the applicant’s evidence, as well as in the light of its finding that the applicant had fabricated claimed events in 2006 – 2012 so as to enhance his claims for protection. The Authority also relied upon recent country information in that regard. The course undertaken by the Authority was consistent with what was held by the High Court in AUS17 v Minister for Immigration and Border Protection & Anor (2020) 269 CLR 494 at [11] where it was said, per Kiefel CJ, Gageler, Keane and Gordon JJ, as follows:
“[11] Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.”
By making the findings that it did, each of the freedom and detention claims, as respectively set out in [10] and [12] of the applicant’s January 2017 statement, necessarily fell away. At [4] of its reasons, the Authority found that the contents of the 12 January 2017 statement did not constitute new information. That the Authority referred to s. 473DC in [4], rather than s. 473DD(b) was immaterial, in that such error could not realistically have caused the Authority to fall into error. What the Authority found, at length, about the inconsistencies in, and fabrication of, the applicant’s evidence, would have prevented the Authority from considering such new claims as new information in any event. The existence of such inconsistencies and fabrication would not have allowed the Authority to be satisfied that the s. 473DD(b)(i) and (ii) criteria, let alone the s. 473DD(a) criteria, had been met. The Authority did not err in that respect.
Ground 3 was a claim that the Authority had erred in its application of s. 473DD to a claim about four of the applicant’s relatives having travelled to Australia, as well as to a claim that the Authority ought to have sought new information about the named persons before finding that the claims were not credible.
The Authority dealt with the claims at [9] of its reasons, when it found as follows:
“[9] I am satisfied that the claims not before the Minister relate to events that pre-date the delegate’s decision and the IAA submission does not provide any reason as to why this information was not provided to the delegate before the decision was made. I also note that the applicant has never previously claimed that he had an uncle, a brother-in-law, or a cousin who came to the adverse attention of the Sri Lankan authorities. I further note in an interview of 19 January 2013 (entry interview) he advised the interviewing officer that he did not know anybody in Australia. In the circumstances, I am not satisfied these new claims represent credible personal information or could not have been provided before the delegate’s decision was made.”
It was clear that the Authority was specifically referring to s. 473DD(b)(ii) when it addressed the question as to whether the information was credible personal information or not, and s. 473DD(b)(i) when considering whether the information could have been provided to the Minister before the Minister made the decision to refuse the visa application. Contextually, the Authority took into account the lack of credibility on the part of the applicant when rejecting the proposition that consideration by it of the information provided by the applicant was required. It was held in DYS16 v Minister for Immigration and Border Protection as follows: [3]
“[37] Some of this new information was found, by the IAA, to have been inconsistent with information previously provided by DYS16. These assertions, if accepted, might have further undermined DYS16’s credibility when assessed by the IAA. They led to the IAA’s conclusion, at [8] of its reasons, that it was “unable to be satisfied that any of the new information which he [had] provided to the treating psychiatrist [was] credible or that it could not have been provided before the delegate made his decision.” As a result, the IAA declared at [8] that it was not satisfied that the requirements of s 473DD(b) had been met or that there existed exceptional circumstances which justified consideration being given to this new information."
[3] [2018] FCAFC 33 at [37] per Tracey, Murphy and Kerr JJ
The Authority did not err in the way it proceeded in that regard.
Ground 4 of the amended application for review was a claim that the Authority ought not to have found that there were inconsistencies in the applicant’s evidence. In that regard, not only was such claim an attempted plea for the Court to undertake an impermissible merits review of the decision of the Authority, it is also to be noted that the applicant provided no particulars or any written or oral submission in support of such claim.
Further, it has been held that the test for unreasonableness is necessarily stringent. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, Kiefel CJ at [10] and [11] explained that:
“[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
[11] Statements such as that made in the Wednesbury Case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies”
In Tsvetnenko v United States [2019] FCAFC 74, Besank, Banks-Smith and Colvin JJ at [84] – [85] said:
“[84] … unreasonableness is not demonstrated merely by an error in reasoning, even an error that may be characterised as grave. Where the claim of unreasonableness is based on alleged unreasonable reasoning it must be demonstrated that the reasons fail to provide an intelligible justification for the result.
[85] The distinction is important because review for legal unreasonableness concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision-making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness.”
At [22] – [35] inclusive of the reasons of the Authority, the Authority set out in great detail the bases for its findings that the applicant gave inconsistent evidence, and otherwise, that the applicant had fabricated evidence. Those findings were accurately summarised in the written submissions filed on behalf of the first respondent on 13 April 2022. [4]
[4] See written submissions of first respondent at [23] – [35]
The Authority did not err in its assessment of the evidence of the applicant, and its findings were not unreasonable. Further, it cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] 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.
…
[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 failed to establish jurisdictional error on the part of the Authority.
The Grounds of Review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 1 July 2024
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