DKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 839
•28 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 839
File number(s): BRG 404 of 2020 Judgment of: JUDGE EGAN Date of judgment: 28 April 2021 Catchwords: MIGRATION – applications for Protection Visas – non-acceptance of the evidence of the first applicant – claims that the Tribunal failed to properly undertake its statutory task found to be without foundation – no evidence of legal unreasonableness on the part of the Tribunal – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 36(2)(a), 36(2)(aa), 499.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No. 84: Consideration of Protection Visa Applications (24 June 2019).
Cases cited: CED15 v Minister for Immigration and Border Protection [2018] FCA 451.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Minister for Immigration and Border Protection v Pandey [2014] FCA 640.
Number of paragraphs: 22 Date of last submission/s: 12 April 2021 Date of hearing: 12 April 2021 Place: Brisbane Counsel for the Applicants: Mr Zipser Solicitor for the Applicants: Alkafaji Lawyers Solicitor for the First Respondent: Mr McLaren of Minter Ellison Second Respondent: Submitting appearance save as to costs ORDERS
BRG 404 of 2020 BETWEEN: DKT20
First Applicant
DKU20
Second Applicant
DKT20 AS LITIGATION GUARDIAN FOR DKV20 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
28 APRIL 2021
IT IS ORDERED THAT:
1.The Amended Application for Review filed on 29 March 2021 be dismissed.
2.The First Applicant and Second Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $6,100.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
The applicants are citizens of Iraq who applied for Protection Visas on 23 May 2016.
The first applicant attended an interview with a delegate of the Minister on 17 January 2017. On 3 July 2017 the delegate of the Minister refused to grant the visa applications on the ground that the applicants were not refugees, and that there were no substantial grounds for believing that as a necessary and foreseeable consequence of their being returned to Iraq, there was a real risk that they would suffer significant harm.
The first applicant had worked as a university lecturer in Iraq. He had travelled to and from Australia on four occasions between July 2013 and July 2015, his having been granted a Student Visa. He most recently arrived in Australia on 28 July 2015 on his most recently issued Student Visa. The second applicant was the first applicant’s wife. The third – sixth applicants inclusive were children of the first and second applicants. The second – sixth applicants all arrived in Australia on 28 July 2015 at the same time as the first applicant.
On 6 July 2017, the applicants applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate. On 18 March 2020, the agent of the applicants provided a pre-hearing written submission and accompanying documents to the Tribunal. On 20 March 2020, the Tribunal conducted a hearing in respect of the visa applications. On 1 July 2020, the Tribunal affirmed the decision of the delegate.
At [3] – [7] inclusive of its reasons, the Tribunal correctly set out the criterion for the grant of a Protection Visa under s. 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’), what relevantly constituted a well-founded fear of persecution under ss. 5H and 5J of the Act, and whether Australia owed complementary protection obligations under s. 36(2)(aa) of the Act.
At [8] of its reasons, the Tribunal recorded that it had had regard to Ministerial Direction No. 84 made under s. 499 of the Act, the contents of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, as well as Country Information Assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) to the extent that they were relevant to the decision under consideration. At [9] of its reasons, the Tribunal recorded the entitlement, in certain circumstances, of the grant of a visa to a member of a family unit where the primary applicant had been granted a protection visa.
The first applicant’s claims were recorded at [24] – [33] inclusive of the reasons of the Tribunal as follows:
“[24] The applicant claims that he worked as a Lecturer in Computer and Information Technology in Dhi Qar University.
[25] The applicant claims that during his employment as a Lecturer, he was subjected to threats from students on a day-to-day basis because of their political affiliations.
[26] The applicant claims that in January 2010, he worked for the Iraqi Electoral Commission in the Dhi Qar Branch and he was responsible for organising the lists of the people who would run the ballot centres on election day.
[27] The applicant claims he was threatened by people from different parties who wanted to influence the ballot centres to guarantee an outcome for the election when he refused to cooperate with them.
[28] The applicant claims he tried to escalate his concerns about the threats to his Manager and to the Police, however, they did nothing to help him.
[29] The applicant claims he made a formal complaint to the Commission of Integrity against the Islamic Supreme Council.
[30] The applicant claims that when the election results did not meet the expectations of the Islamic Supreme Council, he was accused of being a supporter of the opposing parties.
[31] The applicant claims that he fears that he will be arrested or killed if he were to return to Iraq because of his complaint to the Integrity Commission and his role in the Electoral Commission.
[32] The second, third, fourth, fifth and sixth-named applicants have made no individual claims of their own.
[33] The Tribunal noted the following summarised claim set out in the representative’s submission – the applicant fears persecution in his home country because he disclosed corruption, he also assisted the new manager of elections in Dhi Qar in his complaint to the Integrity Commission, also because the Islamic Supreme Council have the upper hand in Iraq at the moment.”
Consideration of Grounds of Review
On 21 July 2020, the applicants filed an Originating Application for Review of the decision of the Tribunal. At the hearing of the matter before the Court, the applicants relied upon Grounds 1(d) and 3(a) and (b) of an Amended Application for Review filed on 29 March 2021. Those Grounds were as follows:
“Grounds of Amended application
1-The Tribunal erred overlooking an integer of the applicant’s claims:
Particulars
a-…
b-…
c-…
d- The tribunal failed to consider the applicant's imputed political opinions, the applicant claims for protection resulted from him exposing corruption in Iraq, where according to the submitted country information corruption is "systemic", in V v MIMA, Wilcox J held that an· attitude of resistance to systematic corruption of, and criminality by, government officers can fall within the description "political opinion"; also in J in Zheng v MIMA, it was stated that : "exposure of corruption can, in a wide range of circumstances, lead to political persecution. Thus, exposure of corruption in circumstances where it so permeates government as to become part of its very fabric can quite easily lead to a fear that the exposure, of itself, may be imputed to be an act of opposition to the machinery, authority or governance of the state, " , in this case, the Tribunal erred in overlooking the applicant's political opinions, and in circumstances where the applicant would not be able to modify his behaviour (s SJ (3)( c ).
…
3-The Tribunal decision was unreasonable.
Particulars:
a- The Tribunal (at 49) stated that it had concerns about the lack of any corroborative evidence of the applicant's claims in relation to his work in the electoral commission and his involvement in the proceedings before the integrity commission, although the applicant explained that the lack of such written evidence is due to the secretive nature of the integrity commission, in relation to the applicant's work with the electoral commission, the applicant provided the delegate with documents that is connected with his involvement with the electorate commission in Iraq, for example, the applicant provided his official card , a letter of appointment to the commission, and lists of the electorate divisions, the applicant provided the delegate with these documents prior to the interview with the delegate, the Tribunal erred in relying on the lack of such written evidence when an explanation for this matter was given, and when the tribunal found that the applicant was consistent in his evidence (paragraph 93).
b-the Tribunal stated that the applicant did not suffer any real chance of persecution due to the lack of evidence, that was the only reason that the tribunal advanced in order to affirm the decision of the delegate, , although the applicant was "consistent", and although there was no finding against the applicant's credibility, the requirements that the applicant present a written evidence about his persecution doesn't have a foundation in the Australian law.”
As to Ground 1(d) of the Amended Application for Review, the applicants asserted that the Tribunal, having ‘accepted that the applicant was motivated to oppose corruption in Iraq in the years before which he left Iraq in July 2013’, did not address the risk that the first applicant would engage in similar conduct on his return to Iraq, and thereby, that there was a real chance of him suffering persecution as a result. The first applicant had claimed that: [1]
“(a) he opposed conduct by political parties which sought to undermine the process of an open and fair election to public office (“the Islamic Supreme Council Conduct”);
(b) he opposed conduct by public officials (ie the Applicant’s manager) which had the consequence of covering up the Islamic Supreme Council Conduct; and
(c) he was willing to take steps to expose the Islamic Supreme Council Conduct and the cover up by his manager by lodging a complaint with the Commission of Integrity; and
(d) he was willing to take steps to oppose the Islamic Supreme Council Conduct by warning his successor about the conduct.”
[1] Paragraph [14] of Applicant’s Submissions.
It was submitted that there was no finding by the Tribunal that the first applicant would not engage in similar conduct if he returned to Iraq or that, if he did engage in similar conduct upon his return to Iraq, he would or would not face a real chance of persecution as a result. It was further submitted that because the Tribunal had failed to deal with an integer of the applicants’ claims, such failure constituted a jurisdictional error.
At [35] – [113] inclusive of its reasons, the Tribunal undertook a careful consideration and analysis of all of the applicants’ claims. At [114], the Tribunal set out its reasons for finding that there was not a real chance that the first applicant would face serious harm on account of his having made any complaint to the Iraqi Integrity Commission, or in relation to his role in the Iraqi Electoral Commission. The Tribunal found that, at its highest, the chance of persecution was remote. The Tribunal’s reasons for so finding were as follows:
• “The applicant claimed to have been taunted three or four times, over a period of three years, and only at the election office. There was never any physical violence. No threats at his home or to his family. The last such threat was in 2013.
• He then claims he went into hiding, only visiting his family at night or at relatives’ houses. Yet he maintained his employment at the university attending sometimes twice a week.
• Despite living in fear whereby he was driven to hide, and to live remotely from his family, he voluntarily decided to try and help his successor at the electoral commission.
• He claims to have made formal complaints to the police and to the Integrity Commission, yet has no evidence of the same.
• The applicant claims he fears that he will be arrested or killed if he were to return to Iraq because of his complaint to the Integrity Commission and his role in the Electoral Commission. Yet he returned voluntarily to Iraq four times claiming to be seeking the inclusion of his family in his financial support package to his scholarship. He claimed to have returned only for short periods and hid whilst he was there, but on one occasion he remained in Iraq for two months.
• The applicant claims he will be arrested because of the complaint he made to the Integrity Commission, because of evidence provided by his successor to the Integrity Commission and because the Islamic Supreme Council has the upper hand in Iraq at present, yet he applied for, and received, a government scholarship to study in Australia and returned several times to Iraq to process further claims for support in relation to that scholarship.
• The applicant claims [name omitted] vanished after he gave evidence to the Integrity Commission, and that this is of concern to him, yet his evidence is speculative – he produced no evidence in support of his contention.
• The events took place over 7 to 10 years ago – no evidence was advanced that Ali or anyone associated with him still has an interest in the applicant.
• Notwithstanding his grave concerns, he did not make an application for protection for some ten months after arriving in Australia with his family, and some three years after first arriving in Australia.
• The applicant maintains that the Iraqi government issued a fine against the applicant for the amount of $406,154 US dollars, yet produced no evidence of such fine.
• He claimed to fear his family being harmed, but they continued to live in Iraq in the house of his father whilst he allegedly hid and after he departed Iraq – they would not have been hard to find – and they came to no harm.
• Country information provided by the Representative tends to support militias attacking elections randomly, entitling a view to be drawn that fears of the militia are fears shared by the population generally.”
At [116], the Tribunal found that, having determined that the first applicant’s fear of persecution was not well-founded, it was unnecessary to further consider whether any harm might have been directed at him for any one of the Convention reasons, namely race, religion, nationality, membership of a particular social group or because of his political opinion. It did so having considered a large amount of country information which the Tribunal had obtained both internally and from the applicants’ representative. The Tribunal additionally considered whether the applicant might even face targeted harm because he would be a returning educated academic imputed to be hostile to the ideals of the Islamic Supreme Council. Having considered country information from DFAT in that regard, the Tribunal found that in such additional respect there was no real chance of persecution being suffered. Any fear on the part of the first applicant was held not to have been well-founded.
Further, the Court accepted the submission made on behalf of the first respondent that it was for the first applicant to advance his protection claims, and not for the Tribunal to speculate as to what those claims might be. The first applicant did not assert that he would face harm in the future because of any previously unarticulated kind of political activity. The Tribunal found that the first applicant did not have a well-founded fear of persecution and that there was no real chance of his suffering any persecution. Accordingly, questions as to whether the Tribunal ought to have considered whether the applicant would or would not engage in conduct claimed to have been undertaken by him prior to his departure in 2013 simply did not arise.
The Tribunal pointed out that there was no corroborative evidence of his having made any complaints of corruption. The Tribunal also found that the first applicant had not established any connection between the first applicant and the PMF, which was the leading militia group umbrella organisation in Iraq. [2] The Tribunal, at [108] of its reasons, noted that though the first applicant had claimed to have been taunted three or four times at the election office, there was never any physical violence perpetrated upon him, and no threats had been made to him or to his family at his home. The Tribunal noted that the first applicant claimed that he had gone into hiding and had only visited his family at night, or at the homes of relatives, yet found such claims to be inconsistent, because he had not only maintained his employment at the university, but had also voluntarily decided to try to help his successor at the Electoral Office. During the course of the hearing before the Tribunal, the first applicant changed his story, in that, instead of his stating that he had made a formal complaint to the integrity commissioner, the first applicant’s evidence was that he had made a verbal complaint during the course of an interview. There was otherwise no basis for the Tribunal entering upon a speculative exercise as to whether the first applicant would be involved in any political conduct if he was returned to Iraq, or if he did, what that conduct might be. There is no merit to such Ground.
[2] Court Book p. 510.
As to Grounds 3(a) and (b) of the Amended Application for Review, it was claimed that the Tribunal had acted in a legally unreasonable way in its consideration of the first applicant’s evidence about the reason for there being a lack of any corroborative evidence of the making of any relevant complaint. The applicants rely upon the contents of paragraphs [49] and [80] of the reasons of the Tribunal in support of such claims. There is no merit to such Ground of review. Firstly, the Tribunal was entitled to have regard to the fact that there was no corroborative evidence of either the making of any complaint, or the existence of any document or order which might reasonably have been expected to have been produced/raised had any such complaint been made. Paragraphs [49] and [80] of the Tribunal’s reasons do no more than state that obvious fact. At [81] of its reasons, having noted that there was no corroborative evidence, the Tribunal, when addressing the question as to whether it believed the first applicant’s evidence or not, said as follows:
“[81] In the absence of any such corroborating evidence, the Tribunal was faced with a simple decision - did it believe the applicant’s evidence and was it persuaded that his claims were genuine?”
As to questions of credibility, at [54] – [66] inclusive of its reasons, when considering inconsistencies in the actions of the first applicant in returning to Iraq on four (4) occasions during the period of time that the first applicant maintained that he was in fear of his life, the Tribunal found as follows:
“[54] A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
[55] The Tribunal discussed these concerns with the applicant at length.
[56] The Tribunal noted that the substantial claims of the applicant appeared to relate to two specific events, his making of a complaint to the Commission of Integrity in 2010 and his involvement in the 2013 election in March of that year. But in the 2013 election, the applicant had little involvement in the election process other than seeking to assist his successor on the Panel and in doing that, the applicant would meet his successor and his colleagues at various houses.
[57] The Tribunal notes that the applicant did not arrive in Australia until July 2013, more than three years after the 2010 elections and his complaint to the Commission on Integrity and some four months after the 2013 election in which he was only indirectly involved. The applicant stated that he decided to come to Australia after the 2013 elections. He applied for a Student Visa to complete a PhD and obtained a scholarship from the Iraqi government.
[58] The Tribunal noted that being the recipient of an Iraqi government scholarship might suggest that there were no concerns with the complaint that he made to the Commission of Integrity. The applicant replied that his being given a government scholarship was different to the local issues he was facing.
[59] The Tribunal noted that the Student Visa was granted on 18 June 2013, but that the applicant did not depart Iraq until 21 July 2013.
[60] The Tribunal noted that the applicant departed Australia again on 8 December 2013 and remained in Iraq for almost one month. The Tribunal asked the applicant the nature of that visit. He replied that he needed to attend the Ministry for Higher Education to persuade the Ministry to include his whole family as part of the financial support for their Visa.
[61] The Tribunal noted that the applicant returned to Iraq a second time on 15 March 2014, staying for another month. Upon enquiry, the applicant stated that he went back to Iraq again to continue his request for financial support for his family.
[62] The applicant’s third visit back to Iraq saw him depart on 11 November 2014 and this time he remained in Iraq for just over two months. He stated that this time he was required in Iraq to apply for the passports for the whole family. The Tribunal noted that the passports for the family members were issued in December 2014.
[63] The Tribunal noted that the applicant departed Australia for a fourth time on 4 July 2015. The applicant advised that on 10 February 2015 he finally received a letter from the Ministry of Higher Education through the Embassy in Australia approving Visas for the family. He stated that his own university (University of Southern Queensland) also gave approval for his family to join him. He said he then returned to Iraq in July to bring his family back to Australia.
[64] The Tribunal asked the applicant why he kept going back to Iraq, especially given the fears he claimed to hold, in order to make the applications that he was. The Tribunal asked why he did not simply do them through email or through the Embassy in Australia, noting that ultimately the approval from the Ministry for Higher Education came through the Embassy in Australia. The applicant replied that that is not the way it is done. The Tribunal again noted that ultimately the approvals were granted out of the Embassy in Canberra.
[65] The Tribunal restated its concerns at the numerous return visits to Iraq and the duration of the stays. The Tribunal also noted that many of the return visits to Iraq coincided with the end of semester breaks of Australian universities.
[66] The Tribunal asked the applicant why he waited until May of 2016 in order to make a Protection Visa Application, noting it was some 10 months after his most recent arrival in Australia, and some three years since his first arrival in Australia. The applicant replied that he waited for his family to arrive and then had to deal with some health issues for his wife.”
Clearly, the lateness of the making of the protection visa application, combined with inconsistencies in the evidence of the first applicant, provided bases for the Tribunal’s implicit non-acceptance of the first applicant’s evidence. It was open for the Tribunal to find that the first applicant did not satisfy the relevant refugee criterion. [3] The Tribunal considered the first applicant’s claims both individually and cumulatively and found that Australia did not owe either protection or complementary protection obligations to the applicants. It did not err in doing so. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[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.”
[3] CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [21] – [24] inclusive per
Thawley J.
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicants have not reached the high bar required to be satisfied for the purpose of establishing legal unreasonableness. On the question as to whether something was legally unreasonable or not, Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and [42] said as follows:
“[41] The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
[42] The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable. Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?”
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 28 April 2021#
SCHEDULE OF PARTIES
BRG 404 of 2020 Applicants
Fourth Applicant:
DKT20 AS LITIGATION GUARDIAN FOR DKW20
Fifth Applicant:
DKT20 AS LITIGATION GUARDIAN FOR DKX20
Sixth Applicant:
DKT20 AS LITIGATION GUARDIAN FOR DKY20
1
7
0