DQJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1126

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1126

File number(s):	BRG 423 of 2020
Judgment of:	JUDGE EGAN
Date of judgment:	25 May 2021
Catchwords:	MIGRATION - Application for Protection Visas – adverse findings on credibility against the first applicant – no jurisdictional error established – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 5H, 5J, 36(2)(a), 36(2)(aa), 499.
Cases cited:	Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421. Hernandez v Minister for Home Affairs [2020] FCA 415. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Number of paragraphs:	30
Date of last submission/s:	14 May 2021
Date of hearing:	14 May 2021
Place:	Brisbane
Applicants:	The First Applicant appeared in person on behalf of the Applicants
Solicitor for the First Respondent:	Ms Topham of Minter Ellison
Second Respondent:	Submitting appearance save as to costs

ORDERS

BRG 423 of 2020

BETWEEN:

DQJ20

First Applicant

DQL20

Second Applicant

DQM20

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:	25 MAY 2021

IT IS ORDERED THAT:

1.The Originating Application for Review filed on 5 August 2020 be dismissed.

2.The First 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:

1. The first applicant is a citizen of Iraq. The second and third applicants are children of the first applicant and her former husband. The first applicant arrived in Australia with her former husband and the second and third applicants on 15 December 2014. The first applicant had entered Australia having been granted a Student Visa issued to her in Jordan.

2. On 23 May 2016, the first applicant applied for a Protection Visa (Class XA) (Sub Class 866).

3. On 7 April 2017, a delegate of the Minister refused to grant the Protection Visa.

4. On 12 April 2017, the first applicant sought review of the decision of the delegate by the Administrative Appeals Tribunal (‘the Tribunal’). The applicants were represented by a migration agent at the time they applied for a review.

5. On 20 March 2020, the first applicant appeared before the Tribunal assisted by her representative.

6. On 7 July 2020, the Tribunal affirmed the decision of the delegate not to grant the Protection Visa.

7. At [3] – [7] inclusive of its reasons, the Tribunal duly recorded the criteria which had to be met by an applicant for it to be held that they were a refugee who required protection or complimentary protection under the provisions of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal referred to the definition of refugee in s. 5H of the Act as well as what constituted a well-founded fear of persecution under s. 5J of the Act.

8. At [8] of its reasons, the Tribunal recorded that it had taken account of the Refugee Law Guidelines as set out in Ministerial Direction No. 84 as made under s. 499 of the Act.

9. The first applicant’s claims, as referred to by the Tribunal at [20] of its reasons, were as set out in the first applicant’s statutory declaration of 1 April 2016 [1] as well as in Part 4 of the decision of the delegate, where the claims were summarised as follows: [2]

   [1]           Court Book (CB) p. 156 – 158 inclusive.

   [2]           CB p. 220.

   “Part 4: Protection Claims

   The applicant’s claims for protection, including those provided at interview, and supporting evidence are contained in CLF2016/39324. The applicant’s claims for protection are summarised below:

   ·     She is a citizen of Iraq and married her now ex-husband [name omitted] in 2011 and she has two children from this relationship they separated four months ago.

   ·     She travelled to Australia with [name omitted] in 2014.

   ·     Her problems in Iraq started in March 2014 because she conducted a conference at the University of Karbala promoting women's rights and discussed the issue of marriage of minors.

   ·     She and [name omitted] expressed their concerns in relation to the legislation of allowing minor girls to marry

   ·     She was harassed and threatened because of her views and on September 2014, they received a threatening phone call.

   ·     Since arriving in Australia, family members who have remained in Iraq have received threats because of her activities.

   ·     She fears that she will be killed if she were to return to Iraq because of her views on women's rights and equality.”

   [name omitted]

10. At [21] of its reasons, the Tribunal recorded that the first applicant claimed that her problems started in Iraq in March 2014 when she conducted a conference about women’s rights and the marriage of minors at the University of Karbala. At [24] of its reasons, the Tribunal recorded that after the conference some students and community members who had attended the conference said that they would seek revenge under Sharia law against the first applicant. The first applicant was recorded as claiming that she was constantly harassed by some students, as well as by some of her fellow lecturers at the University, claiming that some of them had used words like “infidel” and “secular” against her. At [25] of its reasons, the Tribunal recorded that the first applicant had claimed that toward the end of September 2014 her husband had received a threatening phone call from a person who said that they would punish him and his wife. At [26] of its reasons, the Tribunal recorded that the first applicant had claimed that she had received a similar threatening phone call from another person. The first applicant claimed that she was frightened that something would occur, claiming that the security forces were very ineffective when it came to acting upon such threats. At [27] of its reasons, the Tribunal recorded that the first applicant had claimed that in January 2015 her parents had received a letter with two (2) bullets in it, the letter mentioning that it had been sent “to the infidels [name omitted] and [name omitted] who acted on the Devil’s behalf, death will be the punishment for those who oppose Islam’s teaching”. At [28] of its reasons, the Tribunal recorded that the first applicant feared going back to Iraq as she would be persecuted for expressing her ideas about women’s rights, her having claimed that there is gender inequality in Iraq where women cannot express their opinions freely. At [29] of its reasons, the Tribunal recorded that the first applicant claimed that militia groups implemented Sharia law in Iraq, and that the government was formed out of religious groups and was unwilling to provide protection for women, especially active women who had called for gender equality.

11. At [31] of its reasons, the Tribunal recorded the documentary evidence before it as follows:

    “[31]    The Tribunal has before it a range of material, including, relevantly:

    ·     The applicants’ protection visa application forms completed and signed on1 April 2016 (visa application) and lodged with the Department on 23 May 2016;

    ·     The applicants’ identity document being photocopies of passports and birth certificates presented to the Department;

    ·     Academic results for secondary school and university studies undertaken by the primary visa applicant;

    ·     A Limited Power of Attorney document issued on 22 January 2012 and signed by [name omitted]

    ·     Statutory Declaration of the primary visa applicant dated 1 April 2016;

    ·     Record of interview with the delegate dated 16 January 2017;

    ·     The protection visa decision record (delegate’s decision record) dated 7 April 2017;

    ·     Submission for priority processing of applicant to the Tribunal received on 13 and 18 December 2019;

    ·     Pre-hearing submission from the Representative of 18 March 2020;

    ·     Various documents received at hearing on 20 March 2020 from the University of Southern Queensland, relating to the primary visa applicant’s PhD studies and employment at the University;

    ·     Country Information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the DFAT Country Information Report on Iraq, published on 9 October 2018 (the DFAT Report).”

    [name omitted]

12. At [32] of its reasons, the Tribunal set out significant parts of the pre-hearing submission sent by the first applicant’s representative to the Tribunal on 18 March 2020. That submission addressed the findings of the delegate which were adverse to the first applicant concerning what the delegate found was a lack of evidence in relation to her social or political activities in Iraq. The submission also dealt with country information in support of the first applicant’s claims that women in Iraq were discriminated against.

13. In finding against the first applicant, the Tribunal highlighted the following:

    (a)At [47] of its reasons, the Tribunal recorded that there had been substantial delay in the first applicant’s lodging of an application for a Protection Visa, citing that delay in some circumstances could constitute the basis for an adverse credibility finding.

    (b)At [49] – [70] inclusive of its reasons, when recording its consideration of the first applicant’s claims about her pro women’s rights stance, the Tribunal expressed concern about the legitimacy of the first applicant’s claims, finding as follows:

    “[49]The Tribunal noted that the conference that the applicant was involved with the organisation of and the subject of her claims, took place in March 2014 and that it was at that conference, in response to a student’s question, that the response gave rise to harassment of the applicant around the University. The Tribunal further notes that it was towards the end of September 2014 that she and her husband received threatening calls from unknown persons which she claims are related to her comments at the March 2014 conference. The Tribunal further notes that the applicant and her husband and family did not arrive in Australia until December 2014 but that she did not make a Protection Visa Application until 23 May 2016.

    [50] The Tribunal explained to the applicant that the delay between events, and in leaving Iraq and finally in applying for a Protection Visa, is of concern to the Tribunal and might indicate to the Tribunal that the applicant’s claims aren’t genuine. It invited the applicant to respond.

    [51]The applicant responded initially by stating that she didn’t understand the system in order to apply for a Protection Visa. She stated that her focus was on her studies and that she had a Student Visa. The Tribunal, noting that she was at University, enquired how she could not have not heard of Protection Visas or, why she had not asked about protection at the university. She replied that she had not asked about Protection Visas at the University. She then admitted to hearing about Protection Visas in mid-2015. The Tribunal then enquired as to why it took a further 12 months in which to make a Protection Visa Application given that she had known about them for a year. The applicant replied that it took about a year for her to get help, that she had children to look after, and had English language difficulties.

    [52] The Tribunal advised that it remained concerned by this less than compelling explanation.

    [53]The Tribunal enquired about the applicant’s ex-husband and his visa status. She advised that he was in Australia on his own Student Scholarship and visa and has made his own separate Protection Visa Application.

    [54] The Tribunal confirmed that the applicant’s ex-husband has made a Protection Visa application. His claims include some claims similar to those of the applicant, but makes an additional claim that in July 2014 some students belonging to one of the Shi’a militias came to his office and requested that he assist them pass subjects he had failed them on. He claims that his failure to do so led to threats and verbal abuse. The Tribunal noted that the ex-husband’s Protection Visa application is dated the same date as the applicant’s and that they have the same representative.

    [55]The Tribunal had discussed with the applicant and her Representative its concerns about having not one scintilla of corroborative evidence in support of the applicant’s claims.

    [56] The applicant has presented no evidence supporting her claim that she conducted conferences at the University of Karbala and no evidence of the fact of the specific conference that was about women’s rights and the marriage of minors. She has produced no evidence in support of her claims that she had received threats from students or fellow lecturers. The applicant could not identify who had made the threatening phone call to her husband and again to her in September 2014. She did not produce evidence that her ex-husband received such a call. Finally, she was not able to produce a copy of the letter or a photo of the letter with two bullets in it that was allegedly delivered to her parents in January of 2015. She has produced no evidence to support her claim that she was very active in promoting women’s rights. She produced no evidence to support her claims that she is very active in calling for gender equality or being critical of the marriage of minors.

    [57] 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 her claims were genuine?

    [58]The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

    In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.

    [59]However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.

    [60] The Tribunal discussed the various events claimed to have happened in March and September of 2014.

    [61]The applicant confirmed that the March conference was held by the Municipality to which lecturers, students and people from the community attended. She agreed that she was not a speaker at the conference but was asked a question by a student about her views. She stated that her now ex-husband supported her views and said so.

    [62] The Tribunal asked the applicant about the threatening phone call in September of 2014. The applicant replied that it was from a militia group who she claims specifically recalled what she had said at the March conference and told her that what she said was against Sharia law and that she should be punished. She went on to say that the caller called her names, including that she was an atheist who deserved to be killed.

    [63] The Tribunal pressed the applicant on how she knew that the caller was from a militia. The Tribunal reminded her that she had claimed that the caller did not identify himself. The applicant said she drew a conclusion that they were militia and that they were the same people as at the conference.

    [64] The Tribunal asked how the applicant could draw that conclusion. She replied that they called her the same thing they did as at the conference, that is an atheist and a communist.

    [65] The Tribunal expressed its concern again about the lapse of time between the conference and the threat received in September. It asked why anyone would wait six months or more to follow-up a comment with the type of threat claimed. The applicant replied that there was a sequence of threats. The Tribunal invited the applicant to explain. The applicant advised that at lectures, she would listen to the problems of students and would give them advice. She said she would often give her own opinion and would often speak about the danger young girls are exposed to. The Tribunal asked specifically about the threats she received. She replied that she received threats from a group of students at the university who called her an atheist and a liberal and accused her of using her position to make the case for young girls. The Tribunal confirmed that she had never been physically harmed.

    [66] The Tribunal noted the applicant had been notified of a scholarship in 2012. The applicant confirmed that was the case. She said she had been thinking about coming to Australia to complete scientific research. The Tribunal asked the applicant why it took from 2012 until December of 2014, to finally make it to Australia. She advised that she had responsibilities to complete at her university and also had to complete all of the processes necessary to get a Student Visa to Australia. And then she had to activate her scholarship. The Tribunal confirmed that she continued working at the university until her departure for Australia.

    [67] The Tribunal asked the applicant about the threat received by her family in January of 2015. She confirmed that it was a letter that had two bullets with it and which promised to punish her and her husband. The Tribunal confirmed that the letter was addressed to her parents. She confirmed that and stated that the letter was pushed under their front door. The Tribunal asked whether she had a copy of that letter or whether she might have a statement from her parents as to its receipt. She stated she did not.

    [68] The Tribunal enquired as to whether her family were still in Iraq. She confirmed they were. She also confirmed that they have received no more threats in relation to her or her ex-husband, however, she stated that her parents tell her to stay in Australia.

    [69] The Tribunal discussed with the applicant a concern that the Delegate had in its interview with the applicant. The Delegate had noted that the applicant claimed to be an activist for women’s rights. The Tribunal noted from the applicant’s specific claims that she claimed to be very active in promoting women’s rights and gender equality. The Tribunal noted in particular the applicant’s own Statutory Declaration of 1 April 2016. The Tribunal reiterated the Delegate’s concern as to her apparent acceptance of polygamy, noting that she was the second wife of her ex-husband who had also brought his first wife and children of that wife to Australia as well. The Tribunal asked the applicant how her apparent acceptance of polygamy, which is only available to males, sat with her very strong views of women’s rights and gender equality, noting that it was the applicant’s own choice to enter into that polygamous relationship. The applicant provided, what the Tribunal considered to be a very off-handed response, in stating that if both families are happy, then so be it.

    [70]The Tribunal also noted that the applicant had told the Delegate that she had not been an activist in Australia for women’s rights or attended any conferences or rallies and the Tribunal asked the applicant to confirm that. The applicant confirmed that she was not an activist in Australia, but that she had attended some cultural events at university where different issues are discussed.”

    (c)At [82] of its reasons, the Tribunal found that the first applicant was not a compelling witness. It found that the first applicant was not forthright in her responses, and that even having regard to translation delays, her responses were neither spontaneous nor fulsome.

    (d)As to the first applicant’s involvement in the March 2014 conference, and her later time spent in Australia in a polygamous marital arrangement, the Tribunal, at [85] – [89] of its reasons, said as follows:

    “[85] The Tribunal notes that the applicant was not a scheduled speaker at the conference and was somehow asked a question by a student to which she responded and her ex-husband somehow was engaged to express his support for her response. How and why she came to be asked such a question was not provided in evidence. The Tribunal might accept that she answered a question directed at her from a student to which she expressed a personal view as to the marriage of minors. The Tribunal does not accept that the applicant used the language expressed in her claims (refer paragraph 23 above) as she could not recall it in evidence.

    [86]The Tribunal is not satisfied that the applicant is an activist for women’s rights, she provided no evidence in support of any pattern of activism, apart from the one incident in March 2014, which the Tribunal would not define as activism. The Representative agreed that it was this one incident that has given her a profile.

    [87]The Tribunal is satisfied that the applicant has not participated in any activism of any nature since being in Australia and is unlikely to do so in the future, be it in Australia or Iraq.

    [88]Further, the Tribunal is mindful of the applicant’s preparedness to enter into a polygamous relationship with her husband (who had another wife and several children) and the applicant’s flippant response to the Tribunal’s invitation to her to reconcile that with her claimed strongly held views of women’s rights and gender equality, the Tribunal has formed the view that whilst she might have strong views about the marriage of minors (and she would not be alone in that), her views about gender equality could not be as strongly held as claimed. The Tribunal would expect that her students, if aware of her situation, would call her out on that.

    [89]The Tribunal is also satisfied that even if it did accept that the applicant answered a question from a student and gave her own opinion at the March conference, and received some pushback at the time for what she said, it does not accept that it tipped off an enduring campaign of harassment and intimidation, or threats, and certainly would not have culminated in a threat of the type the applicant claims took place in September 2014.”

    (e)The Tribunal at [90] – [91] of its reasons found that in the absence of any corroborative evidence, it was not prepared to accept that the first applicant had received threats in either September 2014 or January 2015 as claimed.

    (f)At [92] – [94] of its reasons, the Tribunal noted that the first applicant was able to continue in her employment at the University of Karbala until she departed for Australia in December 2014, something which did not support her claims that there was an ongoing and enduring campaign of harassment, intimidation and threats against her as a result of what she said had allegedly occurred at the conference in March 2014.

    (g)At [99] of its reasons, the Tribunal recorded that it had considered DFAT country information which did not suggest that there had been targeting of academics or students who returned to the country after having studied or worked overseas.

    (h)At [100] of its reasons, it was recorded that DFAT country information suggested that students or academics did not risk official or societal discrimination on the basis of their employment or education, be it in Iraq or abroad.

    (i)At [106] of its reasons, the Tribunal found that, having considered all of the first applicant’s claims both individually and cumulatively, as well as all of the evidence and submissions, there was no real chance that the first applicant would suffer persecution as a result of her having answered a question about marriageable ages for women in Iraq at a conference in March 2014.

1. The Tribunal found that the first applicant did not satisfy the primary criterion for protection under s. 36(2)(a) of the Act, nor that under s. 36(2)(aa) of the Act there was any real risk that as a necessary and foreseeable consequence of the first applicant being removed from Australia and returned to Iraq, she would suffer significant harm so as to give rise to an obligation by way of complimentary protection.

   Consideration of Grounds of Review

2. At the hearing of the Originating Application for Review before the Court, the applicants relied upon the following Grounds of Review:

   “1. The Tribunal erred in its finding that the applicant’s claims were not credible due to the lack of evidence, the Tribunal erred in not asking itself “what if I am wrong”, (Minister for Immigration and Multicultural Affairs v Rajalingam, FCA 719,).

   2. At 88, the Tribunal linked between the applicant’s polygamous relationship and her claim of being an activist in relation to women rights, it was legally unreasonable for the Tribunal to reach into such conclusion because there is no logical link between polygamy and the lack of women rights, women rights doesn’t stipulate that women should marry or be in an affair with someone who is unmarried, the Tribunal’s conclusion is so unreasonable that no decision maker should have reached into such conclusion.

   3. The tribunal at 91 did not accept that the applicant’s parents received threats in relation to the applicant and her husband, the tribunal did not accept that such threats occurred because there is no evidence presented about it, the same approach was applied by the tribunal in relation to every other claim raised by the applicant , this conclusion is not supported by the Australian law or the international jurisprudence in this field , for example the UNHCR -Geneva , Note on Burden and Standard of Proof in Refugee Claims16 December 1998 stated at (10) that failure to produce documentary evidence to substantiate oral statements should, therefore, not prevent the claim from being accepted if such statements are consistent with known facts and the general credibility of the applicant is good”.

   4. The tribunal failed to consider the real chance of persecution test in relation to the situation in Dhi Qar province although the applicant provided an updated country information in this regard, the same goes to the Tribunal assessment of Complementary protection.”

3. Ground 1 of the Application for Review was an assertion that the Tribunal had erred in not asking itself the question “What if I am wrong?” There is no merit to such claim.

4. The Tribunal had examined all of the relevant evidence and information before it which was central to the first applicant’s claims, and had relevantly concluded as follows:

   (a)At [55] of its reasons, that the first applicant had not put any corroborative material before the Tribunal in support of her claims.

   (b)At [86] of its reasons, the Tribunal found that apart from answering one question in March 2014, the first applicant could not be considered as having been involved in any activism as claimed, either in Iraq or Australia. The Tribunal did not accept that the answering of the question by the first applicant would have given rise to her having any profile of significance so as to warrant the attention of the authorities.

   (c)On the first applicant’s own evidence:

   (i)At [61] of its reasons, the Tribunal recorded that the first applicant had agreed that she was not a speaker at the March 2014 conference but rather had answered a question asked of her by a student at such conference. In the first applicant’s statutory declaration of 1 April 2016, at [6], the first applicant had said “My problems in Iraq started in March 2014 when I conducted a conference at the University of Karbala, the conference was about women rights and the marriage of minors. … I was very active in promoting women’s rights and accordingly I described the people behind passing the legislation and the clergy men who endorsed the legislation as “bunch of ignorant who live in the medieval ages”.”

   (ii)At [65] of its reasons, the Tribunal recorded that the first applicant had agreed that she had never been physically harmed in Iraq.

   (iii)At [68] of its reasons, the Tribunal recorded that the first applicant had confirmed that her family were still living in Iraq, and that they had received no more threats in relation to her or her former husband since she had left.

   (iv)At [70] of its reasons, the Tribunal recorded that the first applicant had confirmed to the delegate that she had not been an activist for women’s rights, or that she had attended any conferences or rallies, whilst she had lived in Australia.  

5. Having made the findings it did, the Tribunal was not required to pontificate as to whether its findings might have been wrong. In Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 576, it was said per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ as follows:

   “In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.”

6. The Tribunal at [44], [57] – [59], and at [82] of its reasons, expressed grave concerns about the first applicant’s credibility. It did not accept her claim that she would suffer serious harm if she was returned to Iraq.

7. To the extent that the first applicant implores the Court to disregard the findings of the Tribunal, the Court is being asked to undertake an impermissible merits review. Further 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.”

8. As to Ground 2 of the Application for Review, it was claimed that the Tribunal had erred when, at [88] of its reasons, it found as follows:

   “[88]Further, the Tribunal is mindful of the applicant’s preparedness to enter into a polygamous relationship with her husband (who had another wife and several children) and the applicant’s flippant response to the Tribunal’s invitation to her to reconcile that with her claimed strongly held views of women’s rights and gender equality, the Tribunal has formed the view that whilst she might have strong views about the marriage of minors (and she would not be alone in that), her views about gender equality could not be as strongly held as claimed. The Tribunal would expect that her students, if aware of her situation, would call her out on that.”

9. There is no merit to such claim. The Court finds that it was reasonable for the Tribunal to contrast the first applicant’s expressed activism on questions of women’s rights, with her being involved in what was, incongruously with her claims of such activism, a polygamous marriage. It could not be said that another fair minded decision maker could not have arrived at the same decision as the Tribunal. In any event, such consideration by the Tribunal could not be said to have been so material that the Tribunal could realistically have arrived at a different decision had it not adopted the stance on the polygamy issue which it did. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:

   “[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

   [46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”

10. The Tribunal based its decision to reject the application for the visa on a number of grounds other than the polygamy issue, and could reasonably have rejected the visa application without reference to the polygamous marriage.

11. As to Ground 3 of the Application for Review, such ground is a claim that the Tribunal erred in finding that the first applicant’s parents had not been threatened by the delivery to them of bullets in January 2015, as claimed by the first applicant. There is no merit to such claim. The Tribunal at [91] of its reasons, reasonably pointed to the fact that though the first applicant could have adduced corroborative evidence of such threat from either her parents or her former husband, no such evidence had been adduced. In such circumstances, the Tribunal was entitled to disbelieve the first applicant’s claim. As was said in Hernandez v Minister for Home Affairs [2020] FCA 415 at [33] per Charlesworth J:

    [33] “As has already been said, the lack of corroborating evidence supporting the claims might well justify the rejection of the factual premises underlying them.”

12. The Tribunal was careful to identify its responsibilities when assessing credibility. It did so at [58] of its reasons where it specifically referred to the Tribunal’s Guidelines on the Assessment of Credibility (July 2015). The Tribunal duly performed its statutory task and did not err in the way in which it considered the evidence before it, or the way in which it went about assessing questions of credibility.

13. As to Ground 4 of the Application for Review, such ground was a claim that the Tribunal failed to consider the real chance of persecution test in relation to the situation in Dhi Qar province. There is no merit to such claim. The first applicant did not relevantly address any such question during the course of the hearing before the Tribunal. The first applicant did not refer to Dhi Qar in her statutory declaration dated 1 April 2016, nor was any reference to Dhi Qar referred to as constituting the basis for any claim for protection or complimentary protection in the reasons of the delegate. In such circumstances, the Tribunal was not required to consider the security situation in Dhi Qar at all. It was not a critical fact about which the Tribunal failed to make an obvious enquiry. [3]  

    [3]           Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27] per French CJ,

14. 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.”

15. The first applicant has failed to establish jurisdictional error on the part of the Tribunal.

16. The Application for Review is without merit and is dismissed.

17. The Court will hear the parties as to costs.         

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       25 May 2021

            Gummow, Hayne, Crennan, Kiefel and Belle JJ.