DUO16 v Minister for Immigration and Anor (No.2)

[2020] FCCA 604

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUO16 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 604

Catchwords:
MIGRATION – Application for protection visa – Authority not satisfied that claimed religious conversion to Christianity was genuine – findings open on the evidence before the authority – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46A(2), 473CA, 473CB, 473DC, 473DD

Cases cited:

Minister for Immigration v SZMDS (2009) 240 CLR 611
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
SZRMQ v Minister for Immigration and Border Protection and Another (2013) 219 FCR 212
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Applicant: DUO16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 665 of 2018

Judgment of: Judge Egan

Hearing dates: 11 October 2019, 28 February 2020, 12
 March 2020

Date of Last Submission: 28 February 2020

Delivered at: Brisbane

Delivered on: 19 March 2020

REPRESENTATION

Applicant: Self-represented

Solicitors for the First Respondent: Ms Ladhams, Solicitor of AGS

Second Respondent: Submitting appearance

ORDERS

1. The amended application for review filed on 25 October 2019 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 665 of 2018

DUO16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Iran who arrived in Australia (Christmas Island) as an unauthorised maritime arrival in September 2012.

2. On 27 October 2015, the Minister exercised power pursuant to the provisions of s.46A(2) of the Migration Act 1958 (Cth) (‘the Act’) to allow the applicant to lodge an application for a protection visa.

3. The applicant applied for a protection visa on 17 February 2016. The applicant attended a protection visa interview on 12 July 2016.

4. On 5 August 2016, a delegate of the Minister refused to grant to the applicant the visa.

5. The matter was automatically referred to the Immigration Assessment Authority (‘the Authority’) pursuant to the provisions of s.473CA of the Act on 8 August 2016.

6. On 11 November 2016, the Authority affirmed the delegate’s decision.

7. On 9 December 2016, the applicant filed an originating application for review of that decision of the Authority. By consent, orders were subsequently made by His Honour Judge Lucev, on 16 April 2018, quashing the decision of the Authority. The matter was remitted to the Authority for reconsideration.

8. On 26 November 2018 the Authority again affirmed the delegate’s decision.

9. On 11 December 2018 the applicant filed an originating application for review of that decision of the Authority.

10. On 11 October 2019, this Court made orders, inter alia, as follows:

    “3. The Applicant is, by 25 October 2019, to file and serve an amended application for review which contains detailed particulars of the ground or grounds of review upon which the applicant intends to rely at the final hearing of the proceeding.”

11. On 25 October 2019 the applicant filed an amended application for review, the grounds of which were as follows:

    “Ground 1: The assessor failed to properly consider all of my claim.

    a) According to the court book, the IAA, as one single organization, has provided two completely different outcomes in regards to my Christianity. Part 19 p.215 states that the assessor accepted that I have converted to Christianity (p. 224). After rejecting our refugee status, before attending Federal Circuit Court, even the Minister lawyer accepted my Christianity. But surprisingly, the IAA disapproved my faith. Two completely opposite opinions on one matter could not be anything but the assessor's personal opinion at the time, rather than following guidelines.

    Ground 2: The assessor did not give me a chance to comment on one aspect of my claim.

    a) In assessing my case, the IAA failed and neglected to contact our Lead Pastor, Pastor Stevenson, for further information regarding my Christianity. It was declared that the pastor's letter was brief and insufficient, however, Pastor Stevenson mentioned in both provided letters (p. 133 & 240) to contact him without hesitation should any further questions or concerns arise. He provided his personal mobile number in the letter dated 18th July 2016 specifically for this purpose. The IAA never meets an applicant, and the reason one is asked to provide a letter from the Lead Pastor is to confirm the applicant's faith. The IAA disapproved these letters, alluding that the content was somehow not true. In fact, it was IAA negligence not to contact our Lead Pastor if they had any concerns about the content of the letter, or needed more information.

    b) The Assessor did not pay full attention to my PV interview. Part 33 p. 272 states that "at the protection visa interview held six weeks prior to her baptism, the applicant made no mention of her intention to be baptised in the near future". However, during minutes 32 to33 of the interview, I clearly mentioned that I will be baptised soon. The translator, on the 33rd minute of the interview, clearly translated this is what is going to happen in the near future to me baptism (sic).

    Ground 3: The interpreter made a translation error and the assessor failed to consider my claim.

    a) In regards to Part 34 p. 273, the translator made an error in translating what I said during the 38th minute of my PV interview. I stated "I've been working on the weekends so I have not been able to attend Church. But I did 'Bible Study' and gained more information for myself through searching on Google". The translator, however, translated "(Applicant) did bible study in her own time". I suppose the translator was not familiar with this term "Bible Study". It is in fact, as confirmed by Pastor Stevenson in his letter dated 18th July 2016, a study that is done with a group of Christian friends (p. 133).

    b) In part 34, it is also mentioned that the letter from the pastor indicates she "only" recently joined one of their mid-week home church gatherings, while the pastor declares "in addition to this (the bible study) they have just recently joined one of our mid-week home church gatherings.”

    Bible study, or home church, is when a group of Christian friends gather and pray together, which has the same value as going to Church. It seems that the assessor either had misunderstood the Pastor, or did not have sufficient knowledge of Christianity.”

12. At [19] of its reasons, the Authority relevantly set out the applicant’s claims for protection as follows:

    ·“She was born in 1989 in XYZ, and is a citizen of Iran. She lived in ABC with her family prior to coming to Australia.

    ·She was born and raised as a Shi’a Muslim but does not believe in Islam anymore. Since being in Australia she has associated with Christian friends and has converted to Christianity.

    ·She dislikes the Iranian government because it does not listen to its people and is unable to provide any protection for women and there is no democracy.

    ·When she was around 15 years old she was caught by the moral police for not having appropriate hijab. She was taken to their van and her hands and arms were forced into a bucket full of live cockroaches. She had to sign an undertaking to comply with Islamic dress code before being released.

    ·When she was a university student her handbag was stolen and she went to the police station to report it but instead was questioned about her make-up and her hijab and was forced to remove her make-up and did not receive any assistance in locating her handbag.

    ·She participated in post-election protests in 2009 and supported Mousavi. As part of a group she was hit with a baton but managed to escape but was recognised through the security cameras and a few days later the Herasat section of the University called her in for questioning telling her that she was recognised as a participant in the demonstrations and wanted to know more about her involvement in political activities. She told them she had no political activities. She was released but received further phone calls from an unknown call asking her similar questions on another two to three occasions.

    ·Iran March 2010, during “Charchanbeh Soory” celebrations, she was with friends celebrating around the fireworks and the police decided to disperse the crowd so they attacked them and she was beaten with a baton on her back.

    ·In 2011 her sister, (sister’s name omitted), started having problems with a man called (Man A) who wanted to marry her. Her sister did not want to marry him. Around May 2012, her sister was driving and the applicant was with her when (Man A) yelled and threatened them and said he would throw acid on their face. Around two weeks later the windows on their mother’s hairdressing salon were smashed and they knew that it was (Man A)’s tribe who did it.

    ·Around July 2012 some people came to their house and wanted them to open the door but they did not and they heard gunshots before the people left. A few weeks later her father’s car was vandalised and they also know that this was done by (Man A) and/or his family

    ·Her mother received a threatening phone call where she was told that (sister) had to marry (Man A) or they would throw acid on their face or kidnap them.

    ·Because they knew that the Savari tribe were powerful enough to carry out their threats without suffering the consequences, they decided to leave Iran after this.

    ·The applicant left Iran legally with her mother and sister in September 2012.

    ·Her father was harassed a few times by the Savari tribe and moved house to avoid the troubles.

    ·The Iranian authorities assume many people travel to Australia either change the religion or say bad political things about the government and these are considered crimes in Iran.

    ·She cannot receive protection from the Iranian authorities because Islamic laws govern the whole of Iran, apostasy is a crime anywhere in Iran and the Savari tribe a powerful act outside the law. Being a woman makes the matter much worse because she does not have many rights of the woman in Iran.”

    (Omissions and pseudonyms added)

13. 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 Act.

14. At [4] – [8] inclusive of its reasons, the Authority considered the content of a submission sent by the applicant’s representative and received by the Authority on 30 August 2016. The Court infers that such submission was contained in the letter from the applicant’s representatives to the Authority dated 29 August 2016. [1] The representatives had submitted that s.473DC or s.473DD of the Act applied in relation to the content of the submissions.

    [1]        Court book (CB) pp. 192 – 196 inclusive.

15. As to the provision of the “new information” to the Authority, the Authority in its reasons found:

    a)At [5] that a quote from the bible in support of the assertion that Christian churches advised followers to make an affirmation rather than swear an oath, was not raised during the protection visa interview with the applicant, and that therefore it was considered that it was new information and that there were exceptional circumstances justifying its consideration.

    b)At [6] that the fact the applicant was baptised a Christian on 21 August 2016 was new information and that it was satisfied that there were exceptional circumstances justifying its consideration of such information.

    c)At [7] and [8] that in the light of it having been provided with information relating to the applicant’s claims concerning her baptism and as to her alleged conversion to Christianity, it was not satisfied that there were good reasons for obtaining further information either from the applicant or others about her claimed Christian conversion.

16. At [9] – [14] of its reasons, the Authority dealt with further submissions received from the applicant’s representatives on 18 May 2018, those submissions being contained in the applicant’s representative letter dated 17 May 2018 together with annexures thereto. [2]

    [2]        CB pp. 237 – 243 inclusive.

17. As to the provision of such “new information” to the Authority pursuant to such submission, the Authority in its reasons found:

    a)At [10] and [11] that a photograph of the applicant’s baptism was new information and that it was satisfied that there were exceptional circumstances justifying its consideration.

    b)At [12] that photographs of the applicant at church allegedly with a church pastor, and which were undated and without context, were not such as to warrant the Authority’s consideration. There were no exceptional circumstances justifying their consideration. Further, the Authority noted that there was already evidence before the Authority that the applicant had attended church in Australia as well as other evidence claimed to be suggestive of her having adopted the Christian faith.

    c)At [13] that a letter from the church pastor attesting to the applicant having been known to him for a period of two years, and as to her being a regular attendee at Sunday church gatherings (in addition to his having stated that he had the highest regard for her and that he can vouch for her Christian character), was new information and that it was satisfied that there were exceptional circumstances justifying its consideration.

    d)At [14] that there were exceptional circumstances justifying consideration of an updated DFAT report on Iran published on 7 June 2018.

Grounds of Amended Application for Review

1. Ground 1 of the amended application for review is not a ground of review. It is argumentative and merely seeks to highlight the fact that in this matter there have been two occasions on which the applicant’s claims have been rejected by the Authority, albeit, as submitted by the applicant, for different reasons. The applicant otherwise seeks to invite the Court to undertake a merits review which it is not entitled to do. There is no merit to the ground for review and no jurisdictional error has been demonstrated by the applicant.

2. As to Ground 2(a) of the amended application for review, the applicant complained that the Authority fell into jurisdictional error by failing to contact, and seek new information from, the applicant’s church pastor, pursuant to the provisions of s.473DC of the Act. Such ground ignored the fact that the Authority, at [4] – [13] of its reasons, clearly engaged with the applicant’s claims as to her having converted to Christianity. The Authority considered the applicant’s claims but rejected them after weighing up all of the evidence before it on that issue. It was clear that the Authority considered that it had enough information before it to properly assess the applicant’s claims, particularly in a “fast track” review process context. The provisions of s.473DC of the Act make it clear that it is within the Authority’s discretion as to whether it gets any documents or further information or not. Such section provided as follows:

   “Section 473DC – Getting new information

   (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

   (a) were not before the Minister when the Minister made the decision under section 65; and

   (b) the Authority considers may be relevant.

   (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

   (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a) in writing; or

   (b) at an interview, whether conducted in person, by telephone or in any other way.”

3. There is no merit to Ground 2(a) of the amended application for review.

4. As to Ground 2(b) of the amended application for review, it was asserted that the Authority was wrong at [33] of its reasons in finding as follows:

   “[33] At the protection visa interview, held six weeks prior to her baptism, the applicant made no mention of her intention to be baptised in the near future and the 2016 letter from the Pastor also did not make any mention of her upcoming baptism nor any information in respect of what is required by their church in order for someone to be baptised. The letter also does not indicate when the applicant started attending church or how long the Pastor had known her at that time and on what basis he could vouch for her Christian commitment and I found his letter to be relatively brief.”

5. Ms Ladhams, the solicitor advocate who appeared on behalf of the first respondent, properly conceded that the Authority was wrong when it so found. Exhibit 2 was an agreed transcript tendered by consent from about the 35^th minute to the 40^th minute of the applicant’s protection visa interview, translated from the Farsi language into English. Such interview occurred on 12 July 2016. The applicant was baptised on 21 August 2016. [3] That translation records the applicant as having said:

   “ … I should tell others that I am a Christian and ask others, propagate my religion, so I can’t go there and even if they don’t know, I should tell them about it myself and also, when you get baptised, your name would be listed as a person who has converted to Christianity and I would be baptised soon.”

   [3]        CB p. 208 – Certificate of baptism.

6. The effect of the applicant’s claims was that because of the Authority’s error, such error was jurisdictional. It was submitted on behalf of the first respondent that such error did not amount to jurisdictional error because such error was not material, having regard to the Authority’s other findings on the question of the applicant’s claimed conversion to Christianity. Such other findings were that:

   a)The applicant had only claimed to have developed an interest in and a desire to convert to Christianity some months prior to her protection visa interview ([32] of reasons).

   b)The applicant was baptised within a few weeks of the delegate’s decision ([32] of reasons).

   c)The 18 July 2016 letter from the pastor [4] made no mention of any upcoming baptism ([33] of reasons).

   d)The 18 July 2016 letter did not indicate when the applicant first attended church, the regularity of any bible study attendance, the frequency of mid-week home church gatherings, or the basis on which the pastor vouched for the applicant’s “Christian commitment and good character”.

   e)The applicant could not remember the name of the church she claimed she had attended ([34] of reasons).

   f)The 17 April 2018 letter from the church pastor did not state the basis on which the pastor vouched for the applicant’s “Christian character and love of people” or why he referred to her as his “sister in Christ”.

   [4]        CB p. 133.

7. The Authority clearly engaged upon a consideration of the applicant’s claims and found against the applicant. It has long been accepted that different minds might legitimately reach different conclusions. As was said by Crennan and Bell JJ in Minister for Immigration v SZMDS (2009) 240 CLR 611 at [131]:

   “[131] 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.”

1. Further, it was submitted on behalf of the first respondent that such error on the part of the Authority was immaterial in that it could not realistically have resulted in a different decision being made by the Authority. [5] The Court accepts such submission. Having weighed up the evidence cumulatively in a reasoned and considered manner, it was open to the Authority to find as it did. There is no merit to Ground 2(b) of the amended application for review.

   [5]        Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] and [46]

2. As to Ground 3 of the amended application for review, such ground raises translation errors which are asserted by the applicant to give rise to jurisdictional error on the part of the Authority. First, in Ground 3(a), the applicant refers to the finding of the Authority at [34] of its reasons that the applicant had participated in bible study “in her own time and attended church when she was not working.” The translation in Exhibit 2 of what the applicant said does not record her having said that she participated in bible study “in her own time.” Rather, that is what the interpreter erroneously translated as what the applicant had said.

3. It was submitted on behalf of the first respondent that to the extent that such was an error in translation, it was not an error which was material as being one which realistically could have resulted in a different decision being made. Whether any hearing or decision making exercise has been rendered unfair or not depends on the extent of any misinterpretation and its relevance to the facts of each case. In SZRMQ v Minister for Immigration and Border Protection and Another (2013) 219 FCR 212 in a joint judgment of Allsop CJ, Flick and Robertson JJ at [9] – [11] it was said:

   “[9] The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

   [10] How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair. Such may be expressed as requiring the appearance of a fair hearing: cf Assistant Commissioner Condon v Pompano 295 ALR at 693 [209]; NIB Health 115 FCR 561 at 583 [84]; R v Tran [1994] 2 SCR 951 at 988, Lamer CJ, writing for the Canadian Supreme Court otherwise comprised of La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ, in a passage cited by Kenny J in her Honour’s influential decision in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6 at 19-20 [30]. It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?

   [11] That rhetorical question should not be taken as intended to encapsulate any complete evaluative principle. Fairness of the process will fall to be judged by reference to the particular circumstances. In some circumstances, the interpretation may be so inadequate as to deny the fact of any hearing. In such circumstances, it may not even be necessary to show that the errors may well have affected the decision in a real way, because there has been no hearing, to which the person was entitled.”

4. The Court does not consider that such mistranslation as occurred was either material or such as to render the adjudication process by the Authority as unfair. The Authority was already apprised of the fact that the applicant had attended church. The Authority did not accept that such attendance was genuine. The mistranslation did not relevantly affect the Authority’s ability to make its findings adverse to the credibility of the applicant. There is no merit to Ground 3(a) of the amended application for review.

5. As to Ground 3(b) of the amended application for review, the Court finds that the finding in [34] of the Authority’s reasons that the applicant had “only recently joined one of their mid-week home church gatherings”, though arguably at odds with what was said by the Pastor in the 18 July 2016 letter, was of no consequence and immaterial. The word “only” has been juxtaposed with the word “just”. Otherwise, the failure of the Authority to include in its reasons a reference to what was said in the letter does not mean that the Authority did not consider its contents. To the contrary, it is clear that the Authority did. The Authority was not required to set out in its reasons each and every step of its decision making process, nor was it required to refer to each and every aspect of the evidence before it. [6]

   [6]        Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003)

6. 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.”

7. Neither could the decision of the Authority 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 is 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.”

8. It cannot be said that the Authority, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27], where it was said:

   “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

   [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

   [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

9. The applicant has not demonstrated jurisdictional error on the part of the Authority. The grounds for review, as articulated by the applicant consequent upon her being required, by court order, to particularise her claims, were without merit.

10. The amended application for review is dismissed.

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

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  19 March 2020

         per Bell, Gageler and Keane JJ. 236 FCR 593 at [46] – [47].