Eeq17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 88

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EEQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 88

File number(s):

SYG 2908 of 2017

Judgment of:

JUDGE EGAN

Date of judgment:

16 February 2022

Catchwords:

MIGRATION – Application for extension of time – no exceptional circumstances demonstrated – substantive claims made on behalf of the applicant lacked merit – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65 and 424A

Cases cited:

MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68

BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1
Briginshaw vBriginshaw (1938) 60 CLR 336
Minister for Home Affairs v DUA16 & Anor [2020] HCA 46
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Division:

Division 2 General Federal Law

Number of paragraphs:

27

Date of last submission/s:

31 January 2022

Date of hearing:

31 January 2022

Counsel for the Applicant:

Mr Jones

Counsel for the First Respondent:

Mr Byrnes

ORDERS

SYG 2908 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EEQ17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	16 FEBRUARY 2022

IT IS ORDERED THAT:

1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The Amended Application for Review be dismissed.

3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $10,000.00

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

1. The Applicant was a citizen of The People’s Republic of China who first arrived in Australia on a provisional spousal visa on 5 January 2005.

2. The applicant had his spousal visa application refused on 11 April 2006. Notwithstanding the refusal of that visa application, the applicant remained in Australia until he applied for a protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’) on 22 January 2014.

3. A delegate of the Minister refused to grant the protection visa application on 21 October 2014.

4. On 5 November 2014, the applicant applied to the Refugee Review Tribunal for review of the decision of the delegate.

5. On 14 December 2015, the Administrative Appeals Tribunal (the Tribunal) invited the applicant to appear before it on 10 February 2016 for the purpose of making submissions and giving evidence on his own behalf.

6. On 21 December 2015, the applicant indicated that he wanted the Tribunal to make a decision on his review application based upon the information already before the Tribunal. [1] That necessarily prejudiced the applicant in the presentation of his case for review, because the Tribunal was confined to assessing the application for review without having the benefit of observing the applicant giving evidence in the context of the claims as made by him.

   [1]           Exhibit 1 – Court Book (CB) – p. 130

7. On 11 February 2016, the Tribunal notified the applicant that it had decided to affirm the decision of the delegate. [2] 

   [2]           CB - p. 132-134

8. At [18] – [23] inclusive of its reasons, the Tribunal carefully set out why it did not accept that the applicant had met any of the relevant protection or complimentary protection criteria. It found as follows:

   “[18]The applicant declined to attend the Tribunal hearing. In his Response to the Hearing Invitation form signed on 18 December 2015, the applicant directed the Tribunal in writing to make a decision on the material before it. I did not have the opportunity to test the credibility of the applicant, his claims or obtain further evidence from the applicant in relation to his claims. I find that the applicant has provided very little detail regarding his claims in his Protection visa application forms. It is acknowledged that additional information was provided to the delegate, and this is recorded in the delegate's decision. However, I find that there is still considerable vagueness, uncertainty and ambiguity to the applicant's claims that he was threatened, that he previously suffered harm and his business was affected by Tong Mu or any of his associates. The alleged events referred to by the applicant in his Protection visa forms occurred over 10 years ago. I am unable to be satisfied that any threat to the applicant remains. Further casting doubt on the credibility of the applicant's claim is the fact that that having arrived in Australia in February 2006, and having his Spouse visa application refused in April 2006, the applicant took no steps to seek protection in Australia until 14 August 2014, almost 8 years later. I find that the vagueness, ambiguity and uncertainty arising from the material before me are such that it leads me to conclude that I am not satisfied that the applicant's claims are based on fact and that the events claimed by the applicant actually occurred.”

   [19]It follows that on the information before me, I am not satisfied that the applicant faces a real chance of persecution involving serious harm in China for a Convention reason now or in the reasonably foreseeable future. Accordingly, I am not satisfied on the evidence before me that the applicant has a well-founded fear of persecution for a Convention related reason.”

   [20]I have also considered whether the complementary protection requirements of s.36(2)(aa) are met. As I am unable to be satisfied as to any of the applicant's substantive factual claims, I am not satisfied on the available information before me that the applicant faces a real risk of significant harm from Tong Mu as a consequence of his relationship with his ex­ wife; that Tong Mu, his associates or the authorities in China have any adverse interest in the applicant; or that he will be denied the protection of the authorities in China. Nor am I satisfied that the applicant will suffer significant harm in China for any other reason.”

   [21] Having considered all of the evidence, I am not satisfied on the evidence before it that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to China that there is a real risk that the applicant will suffer significant harm. I am not satisfied, therefore, that there is a real risk that he will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.”

   [22]For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).”

   [23]Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36 (2)(aa).

   Extension of Time Application

9. The applicant filed an Originating Application for Review of the decision of the Tribunal on 19 September 2017. That application was filed 552 days out of time (1.5 years), notwithstanding that the applicant had been given notice that if he wished to apply for review of the decision of the Tribunal, any such application had to be made within 35 days of the date of such decision. [3]

   [3]           Annexure KMN-1 to the affidavit of Katrina Nash filed on 3 September 2021 at pp. 5-9 inclusive.

10. The Court was referred by Counsel for the First Respondent to a decision of Murphy J in MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68 at [30] where it was said:

    “[30]Section 477A(2)(b) of the Act provides that the court may extend the time, on the making of a written application, if the court is satisfied that “it is necessary in the interests of the administration of justice to make the order”. The authorities set out various factors that may inform the discretion to extend a time limit including the acceptability of any explanation for the delay in filing the application, the length of the delay, the existence of any prejudice to the other party arising from delay, the substantial merits of the application, and consideration of fairness as between the applicant and other persons in a like position: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 ; 58 ALR 305 at 310-11; 7 ALD 315 at 319-20 per Wilcox J, and the authorities there cited.”

11. At the outset, though Counsel for First Respondent conceded that there was no clear prejudice to the First Respondent by reason of the late filing of the Originating Application, it was submitted by Counsel that in cases such as the present, that was not an end to the matter. In exercising its discretion, the Court has to decide whether the other factors referred to by Murphy J in MZYYO tend against the granting of the application for extension of time.

12. It has been held that a Court should not readily overlook the fact that the legislature has intentionally imposed time limits for the taking of action where review is sought challenging the reasons of a decision maker. In BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3], Derrington J said as follows:

    “[3]The extent of the delay in this matter is relatively minor, being only 14 days. Whilst it is always important to keep in mind that the legislature imposes temporal limitations on the institution of appeals for good reason, in this case the failure to comply with the requirement was far from excessive. On the other hand, the time limits prescribed by the Court Rules are not mere aspirational guidelines. They are intended to mark out the period in which it is expected that any appeal might be lodged. Once that period expires without any appeal being lodged the parties are entitled to assume that the litigation is at an end and that they may move on with their affairs as defined by the judgment at first instance. The court should not readily disturb that established state of affairs.”

13. It has been held that it is in the public interest for there to be a timely finalisation of litigation, particularly in relation to migration proceedings. [4]

    [4]           BZAGX v Minister for Immigration and Border Protection [2016] FCA 86 at [6] per Jessup J

14. Whether or not a discretion to extend time ought to be exercised or not in the case of a long delay in the filing of an Application for Review after the relevant limitation period for doing so had expired, it has been held that exceptional circumstances should be demonstrated. In the present case, the delay was 18 months. In WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [30], Derrington J said as follows:

    “[30]In particular, Mr Swan for the Minister referred to Vella v Minister for Immigration and Border Protection[2015] HCA 42; (2015) 90 ALJR 89 (Vella) where Gageler J considered the operation of s 486A(2) of the Act, a cognate provision to s 477A(2), in the context of a 16 month delay. His Honour observed that, given the length of the extension sought, he would only be satisfied that the making of an order extending time would be in the interests of the administration of justice where the applicant’s case is “exceptional”: at 90 [3]. In making that observation, his Honour referred to the observations of McHugh J in Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470 (Ex parte Marks). There, his Honour concluded that the case sought to be advanced if an extension were to be granted would need to be demonstrated to be exceptional before the time for commencing proceedings would be enlarged by many months: at 473 – 474 [13]. Indeed, in the context of an applicant who, being aware of a decision, delayed 17 months before seeking relief, his Honour observed that it was difficult to see how they could ever be granted an extension of time unless some conduct of the public body or official had brought about the delay: at 474 [16]. Those two authorities were recently applied by Gordon J in Salum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2021] HCA Trans 51. In that case, in the absence of a satisfactory explanation for the extraordinary delay of five years and where the applicant had failed to demonstrate an exceptional case warranting such an enlargement of time, the application for an extension of time and the substantive application were dismissed. See also EQJ17 v Minister for Home Affairs [2020] FCA 33 at [38] per Perry J citing Vella and Ex parte Marks”.

15. By way of excuse, the applicant sought to visit his predicament upon the actions of his former agent. It was asserted by the applicant that he was badly advised, and that his agent should have filed the application for review within time, rather than seeking Ministerial intervention as was the case here. That proposition was considered, but rejected, in M211/2003 v Refugee Review Tribunal (2004) 82 ALD 24, where the relevant principles were discussed at [16] – [24] as follows:

    [16]In Re Commonwealth of Australia; Ex parte Marks (2000) 177 AL 491 at 495 [13] McHugh J, considering the High Court’s power to extend time under O 60 r 6, said:

    In Gallo v Dawson(1990) 93 ALR 479 I said that the grant of an extension of time under O 60 r 6 is not automatic. This is as true of an application for constitutional relief under s 75(v) as it is in respect of an appeal. I also said that, when the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. A similar inquiry must be made when the proceeding is for an extension of time in which to commence s 75(v) proceedings to quash an act, decision or judgment. A “case would need to be exceptional” before the time for commencing proceedings was enlarged by many months. The explanation for such a delay is also a relevant consideration. [Footnotes omitted]

    [17]     After referring to the facts of that case, at 495 [15] his Honour continued:

    An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. [Footnote omitted]

    [18]In Marks the applicant sought to quash the decision of a tribunal made 17 months before he filed his application for relief. McHugh J continued (at 495-6 [16]):

    Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy[1965] 1 WLR 8 at 12 ; [1964] 3 All ER 933 at 935 , “the rules of court must prima facie be obeyed”. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court. [Footnotes omitted]

    [19]His Honour’s observations in Marks have been applied in many cases in which an extension of time has been sought to challenge decisions of the tribunal by applications for orders nisi remitted to this court: see, for example, Applicant A2/2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 576 ; Applicant A16/2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 567 ; Applicants A64/2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 568 and Das v Minister for Immigration and Multicultural and Indigenous Affairs(2004) 208 ALR 229 ; 79 ALD 14 .

    [20]The tribunal’s decision was given on 24 May 2000. The 6-month period within which the certiorari application should have been made expired on or about 24 November 2000. The application to the High Court was made on 1 July 2003. Accordingly an extension of time in the order of more than 2½ years is involved. The extension is much longer than the 17 months’ delay that McHugh J in Marks required the presence of “very exceptional circumstances” to excuse.

    [21]The appellant has offered no real explanation for his delay in seeking relief. In his affidavit in support of the application for the constitutional writs he deposes that in June 2000 he made an application to the minister under s 417 of the Migration Act 1958 (Cth). In May 2001 the minister informed him that he had decided not to consider exercising power under that section. The appellant then lodged a complaint with the Commonwealth Ombudsman which was not fruitful. He says he felt hopeless and tried to make contact with persons outside the Curtin Immigration Reception Processing Centre to find out if there was anything he could do or should be doing, but no help was forthcoming. The remainder of his affidavit is a commentary on various parts of the tribunal’s decision.

    [22] In Applicant M29/2001 v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 1266 Weinberg J considered an application for an extension of time in which to apply for mandamus and certiorari. After referring to Marks his Honour said (at [10] and [12]):

    In the present case, the decision of the RRT, which is impugned, was made on 26 November 1999. The application to the High Court for an order nisi was not made until approximately sixteen months later, on 29 March 2001. The only explanation proffered for the delay was the request that the applicants made, in October 2000, some eleven months after the RRT’s decision, for ministerial intervention pursuant to s 48B and s 417 of the Act.

    …

    In my view, the delay has not been adequately explained. I agree entirely with the comments of von Doussa J regarding this very same issue in Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 576 at paras [8]–[10]. There was nothing to prevent the applicants from pursuing their application for constitutional writs in the High Court while, at the same time, seeking ministerial intervention. The absence of any adequate explanation would, of itself, be sufficient to refuse the application for an extension of time.

    [23]In Applicant VUAD/2003 v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 1331 Weinberg J again dealt with a s 417 request put forward as an explanation for the delay in applying for constitutional writs. His Honour said at [18]–[20]:

    It was submitted on behalf of the respondent that the applicant’s request under s 417 should be viewed as an indication that he was prepared to accept the RRT’s decision as correct, and that rather than challenge that decision by way of judicial review, he had elected to take another course. In making that submission, counsel relied upon a series of decisions of this Court …

    In Applicant A2 of 2002, von Doussa J said of the applicant that:

    “… having taken that other course, [to make an application under s 417, and await a decision in respect of that application] in my opinion he must live with the consequence of the delay that occurred”

    This statement by von Doussa J crystallised the legal consequences of what Gray J, in Re Batuwantudawa, characterised as “inconsistent courses”.

    It is also useful to have regard to what was said by Heerey J in Re Ruddock; Ex parte LX [2003] FCA 561 at [42]:

    “As a matter of law there was no reason why that should have held up the filing of an application in the High Court. The terms of s 417 itself, including the provision that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such application where other avenues of possible relief are available as of right.”

    [24]In Daniel v Minister for Immigration and Multicultural and Indigenous Affairs(2004) 205 ALR 198 Goldberg J said at 202 [14] that the applicant’s course of conduct in making a s 417 application was indicative of a decision to abandon any course that would seek to challenge the decision of the tribunal on grounds available under the Act or otherwise at law. At 202–3 [15] his Honour said that the s 417 application in that case was not a sufficient special circumstance to warrant excusing the delay and allowing the extension of time, particularly because the applicant’s conduct implicitly accepted that the tribunal’s decision was not to be the subject of challenge.”

1. In the present matter, the applicant was appropriately advised that he had 35 days within which to make application to this Court for review of the decision of the Tribunal. The Court is not satisfied that the applicant has given any reasonable excuse for the late filing of such application, so as to constitute exceptional circumstances justifying the Court favourably exercising its discretion in the applicant’s favour. The applicant’s explanation for the delay was inadequate.

2. The Court was fortified in its view that time ought not to be extended by reason of its having additionally examined the other claims made on behalf of the applicant considering such claims to be without merit.

3. The applicant was granted leave to rely upon an Amended Application, a copy of which was annexed to the applicant’s written submission filed on 27 August 2021. The relevant difference between the Originating Application as filed, and the Amended Application, was that reference to s. 359A in the Originating Application was substituted by reference to s. 424A in Ground 1 of the Amended Application. S. 424A of the Act relevantly provided as follows:

   “424A Information and invitation given in writing by Tribunal

   (1)      Subject to subsections (2A) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)       invite the applicant to comment on or respond to it.

   (2)      The information and invitation must be given to the applicant:

   (a)except where paragraph (b) applies – by one of the methods specified in section 441A; or

   (b)if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.

   (2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (3)This section does not apply to information:

   (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b) that the applicant gave for the purpose of the application for review; or

   (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)  that is non-disclosable information.

   (4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”

4. Ground 1 of the Application for Review was an un-particularised general claim that the Tribunal had failed to comply with the Migration Act.

5. In any event, consideration by the Tribunal of the provisions of s. 424A of the Act was not required because it was not obliged to provide to the applicant full details of its subjective appraisal of, and consideration of, the applicant’s claims. As was said in SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ:

   “[18]Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:

   … does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …

   If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”

   [Footnotes omitted]

6. The failure by the applicant to appear before the Tribunal was a deliberate act, the consequences of which must be borne by the applicant alone. The applicant’s interview complaint was without merit, in that the Tribunal was not required to put its subjective appraisals, thought processes and procedures to the applicant under s. 424A of the Act. There is no merit to Ground 1.

7. As to Ground 2, such was a claim that the Tribunal’s decision was affected by fraud. There is no merit to such claim. First, no particulars of the alleged fraud have been advanced on behalf of the applicant sufficient to satisfy the principle in Briginshaw vBriginshaw (1938) 60 CLR 336 at 362 – 363. Second, the decision of the Tribunal could not be said to have been induced, or in any way effected by, the actions of the applicant’s migration agent. In Minister for Home Affairs v DUA16 & Anor [2020] HCA 46 at [14] - [15] the Court held as follows:

   “[14]In SZFDE v Minister for Immigration and Citizenship, this Court held that a decision of the Refugee Review Tribunal was correctly set aside in circumstances where a rogue had perpetrated a fraud on a family of applicants by falsely representing that he was a solicitor and a migration agent and dissuading the applicants from attending the Tribunal hearing. The fraud was also perpetrated on the Tribunal, whose decision to proceed in the absence of the applicants might not have been made if it had known about the misconduct. This Court emphasised that the appeal required "close attention to the nature, scope and purpose of the particular system of review" rather than reliance upon maxims such as "fraud unravels everything". The rogue's fraud stultified the operation of the legislative scheme to afford natural justice to the applicants.

   [15]The insistence by this Court in SZFDE that a ground of review for fraud requires a focus upon the manner in which the fraud adversely affected the operation of the particular system of review, and therefore the statutory functions and powers of the Tribunal, was appropriate because grounds of judicial review arise by implication from the statute which provides the jurisdiction to make the decision. Just as it is usually implied that a decision will be invalid if a decision-maker exercises their powers fraudulently, so too it will usually be implied that a decision will be invalid if a decision-maker is defrauded in the exercise of statutory powers. The implication requires that some aspect of the operation of the legislative scheme be affected by actual fraud or dishonesty, not merely negligence. As this Court said in SZFDE, "there are sound reasons of policy" why an administrative decision is not vitiated merely by bad or negligent advice or some other mishap that leads to detriment to an applicant.”

   [Footnotes omitted]

8. In the present matter, the negligence or lack of attention of the agent – even if accepted – did not play any pivotal role in the Tribunal’s decision making process. Negligence or bad advice does not equate with dishonesty, which is an integral element of fraudulent conduct.

9. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135] (‘SZMDS’):

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

10. Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

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

12. The Amended Application for Review is without merit and is dismissed.

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

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate: JM

Dated:       16 February 2022