ECM18 v Minister for Home Affairs

[2019] FCCA 711

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECM18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 711

Catchwords:
MIGRATION – Application for safe haven enterprise visa – newspaper article from Washington Post relating to bombing and targeted attacks published after delegate’s decision submitted as “new information” – IAA did not consider that there were “exceptional circumstances” justifying its consideration of the article – what constitutes “exceptional circumstances” depends on the facts of each case – IAA not shown to have committed jurisdictional error – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473CB, 5H(1), 5J, 473DD

Cases cited:

CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317
CSJ17 v Minister for Immigration and Border Protection (2018) 328 FLR 431
BVZ16 v Minister for Immigration and Border Protection & Anor (2017) 254 FCR 221
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: ECM18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 811 of 2018

Judgment of: Judge Egan

Hearing date: 18 March 2019

Date of Last Submission: 19 March 2019

Delivered at: Brisbane

Delivered on: 22 March 2019

REPRESENTATION

Counsel for the Applicant: Mr M. Guo

Solicitors for the Applicant: Estrin Saul Lawyers

Counsel for the First Respondent: Mr S. Lee

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The amended application for review filed on 12 March 2019 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review and the amended application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 811 of 2018

ECM18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant was born in the district of Daymirdad in the province of Maidan Wardak in Afghanistan. He is an ethnic Hazara and Shia Muslim. He arrived at Christmas Island in Australia in May 2013 and applied for a Safe Haven Enterprise Visa (SHEV) on 15 April 2017.

2. A delegate of the Minister refused to grant the applicant the visa on 22 September 2017. The applicant was subsequently advised that the matter had been referred to the Immigration Assessment Authority (“the IAA”) for review under Part 7AA of the Migration Act1958 (Cth) (“the Act”).

3. On 27 September 2017 the secretary to the Minister provided the IAA with the review material pursuant to the provisions of s. 473CB of the Act.

4. On 5 October 2017 the applicant’s representative emailed the IAA attaching a notice of the appointment by him of a representative. The representative also requested provision of a copy of the visa application and any material before the delegate, as well as the audio recording of the SHEV interview. That information was provided by the IAA to the applicant’s representative on 6 October 2017.

5. New information was provided to the IAA on 28 October 2017 by the applicant’s representative. At [2] of the reasons of the IAA it was recorded that the authority had had regard to the material provided to it pursuant to s. 473CB of the Act. At [3] of the reasons, the authority noted that the applicant had made one submission to it. It was recorded that to the extent that the applicant’s submission contained argument responding to the delegate’s decision and reasserting claims about information already before the delegate, such matters did not constitute new information and regard was not had to them.

6. On 11 July 2018 the IAA affirmed the decision of the delegate to refuse to grant the visa.

7. On 11 July 2018 the applicant filed an application for review of the decision of the IAA.

8. The applicant’s ground for review is set out in the Amended Originating Application filed on 12 March 2019 as follows:

   “5. The Immigration Assessment Authority (IAA) erred in determining that there was no exceptional circumstances justifying the consideration of the ‘Washington Post’ article referred to in the Applicant’s submissions dated 28 October 2017.

   Particulars

   The report is refer to at CB 32 [18].”

9. The applicant’s claims for protection were set out in [8] of the authority reasons as follows:

   “

   ·He is an ethnic Hazara and a Shia Muslim. He was born in a village in Daymirdad district, in Maidan Wardak province.

   ·His family left Afghanistan in 1998 because the Taliban were very active in their home district. They moved to Pakistan for three months before moving to Iran.

   ·In around 2001 or 2002, they were issued Amayesh (refugee) cards by the Iranian authorities. In 2012, he was detained and subsequently deported to Afghanistan by the Iranian authorities because he travelled outside his area of permitted residency.

   ·He remained in Herat for two days but did not feel safe there. He travelled to Kabul, where he remained for 17 days whilst he obtained a passport and arranged to travel to Australia.

   ·He fears harm in Afghanistan, from the Taliban or ISIS as a Shia Muslim, his Hazara ethnicity, his deportation from Iran, and as a returnee from a western country. He fears persecution as a returnee from Australia because he will be treated as an infidel and perceived as a spy for the West/Australia.

   ·The Taliban are still active in Maidan Wardak so he cannot return there. The risk of harm extends throughout Afghanistan, as the Taliban are active throughout the country.

   ·He left Afghanistan when he was very young and does not have any immediate family in the country.”

10. At [9] and [10] respectively of the authority reasons, the authority set out the matters relating to refugee assessment as provided for in s. 5H(1) and s. 5J of the Act.

11. At the conclusion of the hearing before the court, each party was given leave to file further written submissions, such submissions to be delivered at the same time. Counsel for the applicant was advised that he could seek leave to deliver further submissions in reply to the first respondent’s further submissions if he considered it necessary to do so.  No such request has been forthcoming.

12. The applicant’s counsel, in his written submissions, has succinctly identified the issue in the proceeding as being whether the IAA was correct in concluding that there were no exceptional circumstances justifying the consideration of certain “new information”. The new information was an article published in the Washington Post on 20 October 2017 [1] entitled “Dozens dead in mosque blasts in Kabul and central Afghanistan”.

    [1]     Annexure RSJ 1 to Affidavit of Reuben Saul Jahnke filed on 11 March 2019.

13. The Washington Post article was sought to be relied upon in the context of the applicant having asserted that he feared a return to Afghanistan because of his ethnicity and religion, and specifically because Islamic extremist groups were targeting Hazara Shias. The applicant pointed to the IAA having refused the visa application on the basis that the applicant’s home area of Maidan Wardak was no longer a place where the applicant would face a real risk of harm ([55] of authority reasons). The applicant submitted, however, that the authority failed to have due regard to the fact that the applicant would return to his home province via Kabul which the authority found was an area where the applicant, because of his ethnicity and religion, would experience elevated levels of risk, even though the applicant would be in Kabul but briefly before returning to his home province.

14. The applicant asked the IAA to specifically take the contents of the article into account, noting that the article was published after the delegate’s decision was handed down.

15. The applicant placed reliance upon provisions of s. 473DD of the Act, which section provides as follows:

    “473DD  Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”

16. The applicant alleged that the authority erred in two respects. Firstly, it was asserted that the authority was wrong at [4] of its reasons when it found that “No submissions were made in terms of exceptional circumstances”. The applicant points to a written submission made on behalf of the applicant in support of the proposition that a fair reading of such submission made it clear that the question of “exceptional circumstances” was raised by the applicant contrary to the finding of the IAA. The submission in question was as follows:

    “The Applicant requests the IAA take into consideration all attacks on the Shia Hazara population in Kabul that take place after the Delegate’s Decision but before the IAA’s decision, including the murder of 39 Hazaras (and wounding of 45 others) in the anti-Shia / anti-Hazara attack at the Imam Zaman Mosque in the Kabul’s Hazara enclave: Dasht-e-Barchi. This Washington Post report, is ‘new information’ published after the date of the Delegate’s decision (ie. on 20 October 2017). As such, the IAA should find that this new information was not, and could not have been, provided to the Delegate before the Delegate made their decision.”

    [citations omitted]

17. The authority, in [4] of its reasons, noted that the Washington Post article post-dated the decision of the delegate and, by doing so, it implicitly acknowledged that s. 473DD(b)(i) of the Act had been satisfied. It otherwise made it clear in that paragraph of its reasons, before stating that it was not satisfied that there were exceptional circumstances justifying consideration of the Washington Post article, that it already had information before it “about attacks against places of worship in Afghanistan, as well as analysis of such attacks”. It accepted that there were elevated risks for Shias in Afghanistan. The written submission referred to above is seen in paragraph 18 of the written submissions made on behalf of the applicant (CB32) to the authority. Such submission, when read as a whole, makes no specific mention of the term “exceptional circumstances”.

18. To the extent that the authority noted that no submissions were literally made in terms of “exceptional circumstances”, the authority was correct. Such words do not appear in the applicant’s written submissions to the authority. To the extent that the authority otherwise made reference to it having had information before it about attacks against places of worship in Afghanistan, as well as an analysis of such attacks, the authority must be taken to have been referring to other relevant information on point. Such information was identified during the course of argument as being the two publications referred to in Footnote 3. to paragraph [7] of the authority reasons. Those publications were more recent than, and post-dated the Washington Post article, each having been published on 12 December 2017. The Footnote reads as follows:

    ”””? EASO, “Afghanistan: Individuals targeted under societal and legal norms”, 12 December 2017, CISEDB50AD7870; EASO, “Afghanistan: Individuals targeted by armed actors in the conflict”, 12 December 2017, CISEDB50AD7868.”

19. The authority did not err in finding that it was not satisfied that there were exceptional circumstances justifying its consideration of the Washington Post article. It already had before it two more recent publications dealing with the same topic. It is for the authority to be satisfied as to whether or not exceptional circumstances exist so as to justify it considering new information. It will often be a judgement call as to what information it seeks to rely upon concerning the same topic or issue. In the present case, in circumstances where the authority was already in possession of relevant information concerning the circumstances in which attacks upon places of worship occurred in Afghanistan, as well as an analysis of such attacks, the authority ought not to be criticised for preferring more recent sources of information over other earlier sources of information. It ought not to be required to consider each and every piece of information which exists on the same subject matter, notwithstanding that such information was produced, or came to light, after the delegate handed down a decision. The mere fact that information on point was produced after the handing down of a delegate’s decision does not, respectfully, invariably constitute such information as being “out of the ordinary” or “unusual”, so as to mandate that the mere production or existence of such information should be considered an exceptional circumstance always justifying its consideration as new information. [2] For example, one bombing could be the subject of twenty or more newspaper articles, published in different languages by prominent newspapers around the world, after the handing down of the delegate’s decision, concerning the same event. It would be overly burdensome for the authority to consider the contents of each and every such article. As here, whether exceptional circumstances exist depends upon the facts of each case.

    [2]     CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317 at 45.

20. No jurisdictional error has been demonstrated by the applicant in respect of that first alleged aspect of error.

21. Secondly, the applicant asserted that the authority was in error because, even if it had information and analysis before it already addressing the subject of the Washington Post article, it had erroneously considered what was required of it under s. 473DD(a) of the Act. It was submitted that s. 473DD(a) was “not a mechanism for the IAA to filter out information that it does not desire to consider, or which it considers might be outweighed by other information it already has”. [3]

    [3]     Para [21] of applicant’s outline filed on 11 March 2019.

22. The applicant relied upon a decision of His Honour Judge Wilson in CSJ17 v Minister for Immigration and Border Protection (2018) 328 FLR 431. In that case, His Honour found that the IAA had erred by failing to find that there were exceptional circumstances which justified the consideration of new information, where such new information was constituted by a “Voice of America” report asserted by the applicant to be relevant to his application for a protection visa. His Honour found that exceptional circumstances did exist which justified the IAA receiving and considering the new information within the Voice of America report. His Honour found that the IAA should not have simply relied upon extensive submissions made by the applicant’s representative concerning points raised in such report, and should have considered the report itself. That was one basis on which His Honour quashed the IAA decision.

23. CSJ17 is distinguishable from this case. The IAA in that case was content to rely upon submissions made on point by the applicant rather than additionally receiving the Voice of America report. His Honour, with respect, correctly found that had the IAA received and considered the report it might have come to a different decision in favour of the applicant. The authority in the present case was already in possession of more recent information germane to the issues at hand. It was entitled to not regard the production of the Washington Post article as an exceptional circumstance justifying its consideration, because it already had relevant information before it directly on point, which information, it must be inferred, was considered by it to be adequate for the purpose of assisting it in arriving at a decision. The actions of the authority in not being satisfied that there were exceptional circumstances justifying consideration of the new information ought not to be too closely scrutinised in circumstances such as the present. As was said by White J in BVZ16 v Minister for Immigration and Border Protection & Anor (2017) 254 FCR 221 at [30]:

    “30 In considering these submissions, the Court should keep in mind the caution emphasised by the plurality in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that it “should not be concerned with ‘looseness in the language’” nor with “unhappy phrasing” in the reasons of decision‑makers such as the IAA and should not construe those reasons minutely “with an eye keenly attuned to the perception of error”.” 

24. As to what constitutes “exceptional circumstances”, the Court adopts what Derrington J said in CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317 at [42] – [52] inclusive, which was as follows:

    “Was the correct test for determining “exceptional circumstances” applied?

    42 As the Minister correctly submitted the requirements of s 473DD(a) and (b) are cumulative. Each must be satisfied before the IAA can consider new information it has acquired or has been provided: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600. Although that is not directly relevant for present purposes.

    43 The essential question here is whether the IAA erred by concluding s 473DD(a) had not been satisfied because there were no “exceptional circumstances” that justified the consideration of Dr Hughes’ letter. It was argued that, in determining whether “exceptional circumstances” existed, the IAA was also required to consider whether the letter contained “credible personal information which was not previously known and had it been known, may have affected the consideration of the … applicant’s claim” and it did not. To put it another way, the argument was that the IAA committed a jurisdictional error in its assessment of the existence of “exceptional circumstances” by failing to ascertain the extent to which the two limbs of 473DD(b) had been satisfied, especially the second.

    The relevance of the two limbs of s 473DD(b)

    44 The basis for the appellant’s argument is found in a number of cases including the recent Full Court decision in Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 (CQW17), (McKerracher, Murphy and Davies JJ). There, the Court considered in detail the reasons of White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 and the cases which have followed them. Their Honours expressed support for White J’s reasons and clarified their application. The appellant relied upon a large portion of the Full Court’s reasons and it is appropriate to set out the relevant parts:

    [47] Third, the Authority took an inappropriately narrow view of the breadth of the expression ‘exceptional circumstances’, and in doing so made a similar error to that identified in BVZ16 at [9] and [35]–[37] and the Full Court in BBS16 at [102]–[106].

    [48] In BVZ16 White J said (at [9]):

    The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional. (Emphasis added.)

    His Honour’s view was affirmed in BBS16 at [102]–[103] (Kenny, Tracey and Griffiths JJ) and cited with apparent approval by the Full Court in CHF16 at [17]–[18] (Gilmour, Robertson and Kerr JJ) and DYS16 at [31]–[33] (Tracey, Murphy and Kerr JJ).

    [49] In BBS16 the Full Court said:

    We are unpersuaded by the Minister’s contentions that in BVZ16 White J misconstrued or misapplied the term “exceptional circumstances” under s473DD. We respectfully agree with his Honour’s reasons for concluding that the IAA in that case adopted an inappropriately narrow understanding of that phrase. In particular, we agree with his Honour’s findings and reasons that the requirements of subparas (a) and (b) of s 437DD are cumulative but may nevertheless overlap to some extent, with the effect that the IAA’s consideration of either or both of the limbs in subpara (b) may inform the IAA’s satisfaction under subpara (a) as to whether there are exceptional circumstances to justify considering the new information.

    That is not to say, however, that the matters in subparas (b)(i) and (ii) are the only matters to be considered by the IAA in determining whether it is satisfied that there are exceptional circumstances to justify considering any new information.

    (Emphasis added)

    [50] The Minister wrongly describes the question as being whether, in assessing if exceptional circumstances under subpara (a) exist, the Authority is required to treat the matters in subparas (b)(i) and (ii) as mandatory relevant considerations. CQW17 did not advance that argument. Instead, consistently with the authorities to which we have referred, CQW17 contends that in the circumstances of his case the Authority should have, but did not, give consideration to the matters under subpara (b)(ii) in deciding that it was not satisfied that exceptional circumstances exist under subpara (a).

    [51] The expression ‘exceptional circumstances’ in subpara (a) has a broad meaning and it is not possible to state exhaustively what factors will be relevant or what the Authority must consider in a particular case: Plaintiff M174 at [30]. The Authority is obliged to consider all relevant circumstances, and as White J observed in BVZ16 the matters in (b)(i) and/or (ii) will usually form part of the consideration. In the circumstances of the present case, the Authority did not evaluate the significance of the relevant part of the New Raid Information, or turn its mind to whether it was credible personal information capable of informing its satisfaction as to the existence of exceptional circumstances. On a fair reading of paragraph six, the Authority’s finding as to (b)(i) was decisive, and this bespeaks an overly narrow interpretation of the expression ‘exceptional circumstances’.

    [52] With respect to the Minister’s arguments in the alternative, the Minister correctly observes that whether a failure to consider relevant material constitutes jurisdictional error will depend on considerations including the circumstances of the case, the nature and cogency of the material, and the place of the material in the assessment of the claims: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77]; SZRKT at [112]. We do not, however, accept the Minister’s contention that the New Raid Information is peripheral, too vague or insufficiently cogent to be rationally probative in the Authority’s reasoning.

1. Section 473DD requires cumulative satisfaction. No error on the part of the authority in its reasoning process concerning whether exceptional circumstances existed or not has been demonstrated. The Court adopts the analysis of Derrington J at [46] – [48] inclusive in CIH16 as to the meaning of the term “exceptional circumstances” where it was said:

   “

   The meaning of “exceptional circumstances”

   46 Having ascertained the procedure for determining what might amount to “exceptional circumstances”, it is appropriate to turn to the question of its meaning. In this respect the recent decision in AQU17 is most helpful. Their Honours at [13] recognised that the term is not defined and should be given its ordinary meaning, being a reference to circumstances which “may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174.” Reference was also made to that part of the reasons of the plurality in Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 353 ALR 600 being Gageler, Keane and Nettle JJ where at [30] their Honours cited with approval the following passage from R v Kelly [2000] QB 198, [51]:

   Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

   47 In AQU17 their Honours held that when ascertaining whether exceptional circumstances exist an arbiter of fact may consider a combination of factors which, when viewed together, will satisfy the description, or consider one factor on its own as sufficient. The answer to the question is “fact specific” and depends upon the circumstances of each case. It is not irrelevant that in AQU17 the Court found the IAA had correctly approached the question of whether “exceptional circumstances” existed by considering both limbs of s 473DD(b). That conclusion was reached despite there being no express reference to the second limb because the IAA’s determination was plainly based upon such a consideration.

   48 Nevertheless, the determination of what amounts to “exceptional circumstances” in any particular case is an evaluative exercise by the IAA and, generally speaking, each case will turn on its particular facts: AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [32] (AUH17). Relevantly, the Full Court in AQU17 said as to the evaluative approach:

   [17] Nor, contrary to the appellant’s submissions, was the Authority obliged to evaluate the credibility of the new information or the significance of the new information to the appellant’s case beyond the consideration given, absent some feature or matter to cause, or which should have caused, the Authority to consider that there was something about the appellant’s case which made it unusual or out of the ordinary. Nor does it appear from the material that anything was put to the Authority about the appellant’s personal circumstances or reason for the later inconsistent account, which was potentially relevant to the issue of “exceptional circumstances”.

2. Further, it has recently been held that where materiality has been put in issue in an application for judicial review of a decision of a tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof. [4] In Minister for Immigration and Border Protection v SZMTA, on the question of materiality, the High Court said as follows at [45], [48] and [49]:

   [4]     Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [4].

   “

   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.

   …

   48 In the case of an invalid notification, where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal's decision could have been different if it had taken the document or information into account. The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result.

   49  Where non-disclosure of a notification has resulted in a denial of procedural fairness, the similar question that remains for the court on judicial review of a decision of the Tribunal is whether there is realistic possibility that

   38 Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; [1986] HCA 54.

   39 cf Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 122 [104], 128 [122]; [2000] HCA 57.

   the Tribunal's decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions. Whilst "[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome"³⁸, the task is not impossible³⁹ and can be done in these appeals.

3. The applicant has not demonstrated that there was a realistic possibility that the decision of the authority could have been different had it found that there were exceptional circumstances justifying it considering the Washington Post article.

4. The authority otherwise closely examined all of the other claims made on behalf of the applicant in [20] – [54] inclusive of its reasons under the respective headings “Claims related to religious and ethnic profile”, “Claims related to Kuchi nomads”, “Claims related to time in Iran and the West (Australia)” and “Generalised violence”. Under each of those headings the authority found that there was no real chance that the applicant would suffer harm. The authority appropriately relied upon country information, substantial numbers of footnotes to which appeared in its reasons. It otherwise did not overlook consideration of a relevant matter.

5. Further it cannot be said that no other rational or logical decision maker could not have made the same decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

   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.”

6. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered 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.”

7. The application for review is without merit and is dismissed.

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

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  22 March 2019