DWQ21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 110
•13 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DWQ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 110
File number(s): BRG 487 of 2021 Judgment of: JUDGE EGAN Date of judgment: 13 February 2024 Catchwords: MIGRATION LAW – Application for protection visa – delay in making application – whether Tribunal had properly considered the facts before it – whether Tribunal’s decision unreasonable – whether Tribunal had properly conducted a review of the decision of the delegate – no jurisdictional error established – application for review dismissed. Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 36, 414, 415, 425 Cases cited: CED15 v Minister for Immigration and Border Protection [2018] FCA 451
Chan v Minister for Immigration and Ethnic Affair (1989) 169 CLR 379
DAO16 v Minister for Immigration and Border Protection (20118) 258 FCR 175
MIEA v Guo (1997) 191 CLR 559 at 59 v MILGEA (1992) 38 FCR 191
Minister for Aboriginal Affairs v Peko – Wallsend (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Prasad v MIEA (1985) 6 FCR 155
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submission/s: 6 September 2023 Date of hearing: 6 September 2023 Place: Brisbane Counsel for the Applicant: Mr L Boccabella Solicitor for the Applicant Mr A Torbey, A J Torbey & Associates Solicitor for the Respondent: Mr D McLaren, Minter Ellison ORDERS
BRG 487 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DWQ21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULUTRAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
13 FEBRUARY 2024
IT IS ORDERED THAT:
1.The Application for Review filed on 25 October 2021 be dismissed.
2.The Applicant pay the First Respondents costs fixed in the amount of $8371.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The Applicant is a citizen of Malaysia who applied for a protection visa on 10 June 2021. [1]
[1] See Exhibit 1 – Court Book (‘CB’) pp. 17 - 51.
On 12 July 2021, a delegate of the Minister refused the visa application. [2]
[2] CB pp. 120 - 125.
On 15 July 2021, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.
On 20 September 2021, the Tribunal affirmed the decision of the delegate in its reasons. [3]
[3] CB pp. 174 – 187.
The relevant background to the bringing of the application was as set out in [1] – [7] of the reasons of the Tribunal as follows:
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 July 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 ('the Act'). The applicant, who claims to be a citizen of Malaysia, applied for the visa on 10 June 2021. He submitted his application for review on 14 July 2021.
2.The applicant's written claims concern him purportedly borrowing money from loan sharks following the financial decline of his small electronics business. Additionally, the applicant claims both he and his brother were threatened and physically attacked when he could not repay the loan. The delegate refused to grant the visa on the basis that State protection was available to the applicant if he returns to Malaysia.
BACKGROUND
3.The applicant claims to have borrowed money from loan sharks in November 2013 due to the financial decline of his business. Thereafter, he worked in Papua New Guinea between July 2014 and August 2016 as a warehouse manager. He returned to Malaysia twice during this period. In August 2016, the applicant concluded his work in Papua New Guinea and returned to Malaysia. The applicant first travelled to Australia between September and November 2016. He returned to his hometown in Malaysia following this visit to Australia. He claims to have been attacked in February 2017.
4.In March 2017, the applicant made his most recent entry into Australia. He held a Visitor visa at that time. This visa expired in June 2017. The applicant remained in Australia as an unlawful non-citizen for approximately 6 months, then in December 2017 he made an invalid application for Protection. He received confirmation from the Department that this application was invalid, however the applicant did not engage further with them. The applicant then remained as an unlawful non-citizen, working illegally in the agricultural sector, for a further period of approximately 3 years and four months before he was detained by Department Officers in a compliance raid in March 2021.
5.The applicant made the current protection visa application on 10 June 2021, whilst being held in immigration detention in Brisbane. It was refused on 12 July 2021. On 15 July 2021, the applicant applied for review of the protection visa refusal decision. He provided a copy of that decision to the Tribunal.
6.The applicant appeared before the Tribunal by video link from immigration detention on 8 September 2021 to give evidence and present arguments. The review hearing was conducted using the assistance of an interpreter in the Mandarin and English languages. The applicant confirmed that he understood the interpreter and there were no other witnesses to be called. The applicant was represented by his registered migration agent, who attended the hearing by telephone.
7.The applicant remains in immigration detention in Brisbane. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s relevant immigration history was formally recorded as follows: [4]
[4] CB p. 68.
IMMIGRATION HISTORY
15/12/1984 Client born in Malaysia 23/08/2016 UD-601 visa granted
03/09/2016 First arrival in Australia on UD-601 29/11/2016 Departed Australia
03/03/2017 UD-601 visa granted 06/03/2017 Last arrived on UD601 06/06/2017 UD-601 ceased
07/06/2017 Became UNC
21/11/2017 Department emailed the client to resolve UNC status (as no contact numbers) - email sent to [email protected] & [email protected]
19/12/2017 XA866 protection visa application commenced and deemed invalid 23/03/2021 Detained under s189 (overstayer)
10/06/2021 XA866 protection visa application commenced (assessed valid)
14/06/2021 Phone interviewed conducted with the client in relation to the BVE application 16/06/2021 BVE application refused (clause 050.223 not met) - Decision Record - CLD2021/17076854
At [8] – [14] of the reasons of the Tribunal, the Tribunal considered what criteria needed to be satisfied for it to be found that a person was a refugee under the provisions of s. 5H of the Migration Act 1958 (Cth) (‘the Act’), or what constituted a well-founded fear of persecution under the provisions of s. 5J of the Act. The Tribunal also addressed the relevant refugee criterion in s. 36(2)(a) of the Act, and the relevant complimentary protection criteria under s. 36(2)(aa) of the Act.
Grounds of Review
On 25 October 2021, the applicant, by his lawyer, filed an originating application for review of the decision of the Tribunal. At the hearing before the Court, the applicant’s Counsel did not press grounds 5 and 7 of the application for review. The remaining grounds were as follows:
1.The AAT the wrongly applied and interpreted s36 of the Migration Act 1958 (Cth) 1994.
2.The AAT wrongly applied the relocation principle.
3.The AAT committed the type of error identify by Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 61, as follows:
The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.
4.The decision of the AAT was unreasonable.
5.…
6.Further and/or in the alternative, the AAT did not conduct a proper review under and in accordance with ss 414, 415, 425 and generally under Part 7 the Migration Act.
7.…
Grounds 1 and 2 were argued as separate grounds, whereas the Court was invited to consider grounds 3, 4 and 6 together.
Ground 1 was a claim that the Tribunal had wrongly applied and interpreted s. 36 of the Act. It was submitted that the Tribunal had misconstrued the evidence before it such that considerations relating to what constituted a real chance of persecution, or the infliction of significant harm, was not properly the subject of analysis by the Tribunal.
It was submitted on behalf of the applicant that the Tribunal had failed to correctly apply the “real chance” test. There is no merit to such claim.
The real chance test allows for an objective assessment to be made as to whether the chance of the applicant suffering harm in the reasonably foreseeable future was remote or far-fetched. [5]
[5] Chan v Minister for Immigration and Ethnic Affair (1989) 169 CLR 379 at [389] per Mason CJ.
An assessment as to whether or not the Tribunal has correctly applied the real chance test or not depends upon a fair reading of the reasons of the Tribunal. The assessment ought not to be undertaken with an eye too keenly attuned to error. [6]
[6] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ,
Toohey, McHugh and Gummow JJ.
In its reasons at [17], the Tribunal notes the following:
Mandatory considerations
17.In accordance with Ministerial Discretion No.84, made under s. 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal had the benefit of receiving the oral evidence of the applicant about relevant circumstances in Malaysia, as well as assessing the relevance of country information which included specific references to parts of a DEFAT Country Information Report, and to specific references made from internal Malaysian news media reports. [7]
[7] See [47] of the reasons of the Tribunal and footnotes 1 – 4 inclusive thereto.
The Court finds that the Tribunal came to a reasoned conclusion that state protection was available to the applicant if he returned to Malaysia. At [52] of its reasons, the Tribunal found as follows:
52.That a person claims to fear persecution for a particular reason does not of itself establish either the genuineness of the asserted fear, or that it is 'well-founded', or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 59 v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
At [59] – [60] of its reasons, the Tribunal recorded that it was not satisfied that Australia’s protection obligations had been invoked. The Tribunal found that after consideration of country information, the applicant would be able to avail himself of protection from the Malaysian authorities, the Court infers for any reason, should he return to Malaysia. Ground 1 is without merit.
Ground 2 was a claim that the Tribunal had wrongly applied the relocation principle. There is no merit to such claim. The Court accepts the submission made on behalf of the first respondent that this ground seeks an impermissible merits review.
The Tribunal addressed the question of relocation at [15] of its reasons where it found:
15.Under s. 62 (2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’ must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
The Tribunal further considered the question of relocation at [48] of its reasons, relying as it did upon DEFAT country information relating to the reasonableness of the applicant being able to relocate within Malaysia to avoid any persecution. At [60] of its reasons, on the question of relocation, the Tribunal found as follows:
60.Additionally, the Tribunal has considered the country information regarding internal relocation and finds that it would be reasonable for the applicant to relocate within Malaysia to avoid those he purportedly fears might cause him harm, noting he has demonstrated versatility in being able to travel to Singapore, Papua New Guinea and Australia, finding employment in these countries. It follows that even if the Tribunal has accepted the veracity of his claims that he faced harm from loan sharks, which it does not, the applicant would not be entitled to prosecution.
There was no merit to such ground. There was no requirement that the Tribunal should unilaterally undertake its own investigation as to the extent to which any loan shark might have links throughout the country. [8] The applicant has failed to establish that the provisions of s. 5J(1) have been met. The Tribunal considered that the applicant did not have a well-founded fear of persecution because effective protection measures were available to him in Malaysia. [9]
[8] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [18].
[9] s. 5J(2) of the Act.
Grounds 3, 4 and 6 were relied upon cumulatively by the applicant. Ground 3 suggested that the Tribunal had not properly considered relevant facts and that it had therefore fallen foul of the decision in Minister for Aboriginal Affairs v Peko – Wallsend (1986) 162 CLR 24 at 61 per Brennan J. Ground 4 was a claim that the decision of the Tribunal was unreasonable. Ground 6 was that the Tribunal had not conducted a proper review under Part 7 of the Act.
First, it was submitted by Counsel for the applicant that during the course of the hearing before the Tribunal, the Tribunal member effectively prevented the applicant from relying upon notes, apparently prepared by the applicant, to enable him to refresh his memory about the timing of certain events. The relevant exchange was as follows: [10]
[10] See p. 9 of Exhibit 2 (the transcript).
Member Chapman: One moment sir. Just a moment, please,
Interpreter: Okay.
Member Chapman: Now, I can see various pieces of paper in front of you on the desk where you’re sitting. Are they notes or is it blank paper for you to write notes?
Mr Tiang: [Interpreted] I’d be – I would like to apologise because sometimes I’m not really sure about years so I put some years notes down.
Member Chapmans: Well I’m going to ask you about your life and your case, I’ve read all the documents that have been submitted. What I want to do is hear from you today, sir. I want you to tell me about these things. Do you understand that?
Mr Tiang: [Interpreted] Thank you.
Member Chapman: So if you have written notes, then I would like you to please place them away:
Mr Tiang: [Interpreted] Thank you.
Member Chapman: Okay, that’s fine. Thank you, very much and the paper you’ve got in front, is that blank paper you want to take notes? That’s fine.
Mr Tiang: That’s blank.
Member Chapman: Okay. All right, now, what can you tell me about your life in Malaysia, please?
The applicant’s written submissions refer to the fact that the applicant was appearing by video-link from a detention centre in Brisbane in circumstances where his interpreter was assisting via a telephone hook-up, and where the Tribunal member was in a Tribunal hearing room. The only other reference in the applicant’s written submissions to the member having asked for the removal of the applicant’s notes was a submission that “The writer knows of no authority which allows the AAT to do this.”
To the extent that the applicant was claiming some procedural unfairness on the part of the Tribunal by asking the applicant not to read from prepared notes, there is no merit to such claim. The Tribunal’s duty was to fairly receive information from the applicant concerning his claim. If the applicant was allowed to read or have ready access to notes which prompted his memory, then the entire exercise of receiving evidence from an applicant about their experiences, and assessing the plausibility and veracity of that evidence, would be derailed. So much is trite.
As to the other grounds, the applicant took issue with the use by the Tribunal of terms including “vague and unpersuasive”, “vague account of the particulars of the loan”, “scant detail of the harm” and “He did so in a vague and unconvincing fashion”.
As to that claim, there is no merit to the claim that the Tribunal failed to comply with the technical requirements of ss. 414, 415 or 425 of the Act. The Tribunal reviewed the decision of the delegate and gave reasons for its decision. The Tribunal affirmed the delegate’s decision, a course of action open to it under s. 415 of the Act. The Tribunal otherwise invited the applicant to appear before the Tribunal to give evidence. The applicant was given an appropriate opportunity to present his claims and arguments.
As to the submission in [10] of the applicant’s written submission, filed on 26 April 2023, that the responses of the applicant in his evidence were not vague or unconvincing, the Court finds that such submission has not been made out. It seeks an impermissible merits review.
At [22] – [51] inclusive of its reasons, the Tribunal carefully considered the applicant’s oral evidence in conjunction with all his claims, and country information. Relevant findings made by the Tribunal, as set out in [17] of the respondent’s written submissions (adopted by the Court as being accurate) filed on 4 May 2023, were relevantly as follows:
17. Specifically, the Tribunal found:
(a)the applicant provided evidence of the harm he and his family had faced, or would face, in a vague and unconvincing fashion (CB 185, [53]);
(b)the applicant was given multiple opportunities to provide further detail regarding particulars of the purported loan from the loan sharks, yet he maintained vagary in his account (CB 185, [53]);
(c)the significant delay in claiming protection undermined the genuineness of the applicant's claims regarding the harm he purportedly fears from the loan sharks (CB 185, [54]);
(d)the fact that the applicant remained in Australia unlawfully engaging in illegal agricultural work for three years and four months before he was detained by Department Officers, without making another attempt to claim protection, gravely undermined the genuineness of his claims (CB 185, [56]); and
(e)it did not accept that the applicant had corroborating documentary evidence relating to his purported loan or injuries, and that the excuse that he could not access documents as he is in immigration detention was a convenient ruse designed to bolster his claims for protection (CB 186, [57]).
The Tribunal was entitled, after a review of all the evidence before it, to find that the applicant was not a witness of credit. The failure by the applicant to seek to make a protection visa claim at the earliest opportunity was a significant factor in that regard. At [54] of its reasons, the Tribunal found as follows:
54.The significant delay in claiming protection also undermines the genuineness of the applicant's claims regarding the harm he purportedly fears from the loan sharks. It is worth pausing to reflect that on the applicant's own account he received threats from the loan sharks prior to and during his stint working in Papua New Guinea from 2014 to 2016, yet he still returned to Malaysia on holiday and prior to initially travelling to Australia in late 2016. Furthermore, the applicant confirmed that he received threats from the loan sharks during his initial visit to Australia in 2016, yet he still returned to Malaysia and immediately went into hiding due to his fears. Upon his return to Australia in March 2017, following an alleged terrifying assault from the loan shark debt collectors in February 2017, the applicant did not claim protection in a timely fashion. This is despite his own evidence of being very scared of the loan sharks upon his re-arrival in Australia and fearing for his life in May 2017 when his brother reported his own assault to him. Indeed, the applicant decided to remain in Australia following the expiry of his Visitor visa in June 2017 and he worked illegally in the agricultural sector until December 2017 when he made his initial invalid application for protection. Of note, the applicant did not attempt to re-engage with the department after being notified of this invalid application.
The conclusions reached by the Tribunal were open on the evidence before it. As Thawley J said at [21] – [24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:
“[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:
69.The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.
70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.
22.The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.
23.It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox.
24.The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].
The Tribunal at [24] of its reasons not only found that the applicant had provided a vague and unpersuasive account of the particulars of the alleged loan, but also that the applicant was unable to recall when the loan was taken out or from whom the loan was obtained.
At [30] of its reasons, the Tribunal not only found that the applicant’s account of his being allegedly beaten was vague, but also that after having asked the applicant for further details of the alleged attack on a number of other occasions, the applicant’s account remained vague.
At [32] of its reasons, the Tribunal found that the applicant’s accounts of claimed threats to his brother were vague, something that was open for the Tribunal to find on a reading of the transcript. [11]
[11] See Exhibit 2 – Transcript (‘T’) pp. 23 – 24.
Further, the Court finds that the Tribunal was not unreasonable in arriving at its decision, and that it did not err. No extreme illogicality or irrationality was demonstrated. Another reasonable decisionmaker could have arrived at the same conclusion.
In DAO16 v Minister for Immigration and Border Protection (20118) 258 FCR 175 at [30], Kenny, Kerr and Perry JJ summarised the principles relating to legal unreasonableness as follows:
“[30] The relevant principles can be summarised as follows.
(1) While findings as to credit are generally matters for the administrative decision-maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) that:
135. … 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.
(Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (in a passage approved in CQG15 at [60]) that:
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny …
(Citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].”
Grounds 3, 4 and 6 are without merit.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The grounds of review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 12 February 2024
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