EGJ18 v Minister for Home Affairs
[2019] FCCA 2782
•1 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EGJ18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2782 |
| Catchwords: MIGRATION – Applications for safe haven visas – implausible and inconsistent responses – analysis of claims in context – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473CB, 473DD |
| Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 |
| First Applicant: | EGJ18 |
| Second Applicant: | EGK18 |
| Third Applicant: | EGL18 |
| Fourth Applicant: | EGM18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 853 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 6 September 2019 |
| Date of Last Submission: | 6 September 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 1 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hartwell |
| Solicitors for the Applicant: | Salvos Legal |
| Counsel for the Respondents: | Mr Byrnes |
| Solicitors for the Respondents: | MinterEllison |
ORDERS
The further amended application for review filed on 11 April 2019 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 853 of 2018
| EGJ18 |
First Applicant
| EGK18 |
Second Applicant
| EGL18 |
Third Applicant
| EGM18 |
Fourth Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The first applicant and the second applicant are citizens of Iran and are married. The third and fourth applicants are their children. They all left Iran on 15 May 2013 and arrived in Australia as Unauthorised Maritime Arrivals in August 2013.
On 3 June 2017, the applicants made application for a Safe Haven Enterprise visa (Subclass XE-790).
On 15 December 2017, the delegate to the Minister refused the application for the visa. The matter was referred to the Immigration Assessment Authority (the Authority) for review.
On 23 July 2018, the Authority affirmed the decision of the delegate not to grant the visa.
The applicants filed an originating application for review on 17 August 2018. A further amended application for review was filed on 11 April 2019, the Grounds for review being as follows:
1. The Immigration Assessment Authority (IAA) made findings of fact that:
1.1 the Applicants would not have a well-founded fear of persecution if returned to Iran.
1.2 the Applicants would continue to practice Islam on return to Iran; and
1.3 their conversion to Christianity was not genuine and was done solely for the purpose of furthering their claims for protection,
which was unreasonable, lacking rationale foundation and illogical.
Particulars:
a. It was found that in respect of the First Applicant that:
“I conclude that his attendance at church and his baptism were solely for the purpose of furthering his claims for protection. I do not accept that the applicant has abandoned Islam and conclude that on return to Iran he would continue to practise Islam in the same manner as before his departure.” (IAA para. 15)
“I do not accept that the applicant would declare himself a Cristian or would seek to practise or identify as a Christian on return to Iran. I do not accept that he would seek to convert others to Christianity. I do not consider that this would be because he would be afraid to do so because of a fear of persecution, but because he does not have a genuine and ongoing commitment to the Christian faith.”(IAA para. 16)
b. It was found that in respect of the Second Applicant:
“I do not accept that she would seek to practise Christianity or to proselytise on return to Iran. I conclude that she would continue to practise Islam as she did before her departure from Iran.” (IAA 23)
c. These findings were unreasonable and illogical such that the conclusion reached by the decision-maker was not reasonably open on the evidence.
3. In the alternative, by the reasons particularised at 1a – c above, the IAA erred by not putting their findings to the applicant resulting in a breach of natural justice.
5. The finding particularised below at 5.a and b. (iv) to (vi):
5.1 Is inconsistent with the delegates finding quoted at 5e. below and made without any other stated basis in fact; and
5.2 This finding of fact concerns a jurisdictional fact. That is, the state of satisfaction as to the fear of persecution
Particulars:
a. The IAA found:
“…I do not accept that this claim is plausible and so do not accept that the applicant’s daughter received such a summons or that this was the reason that the family left Iran.”(IAA para. 12)
b. The basis for this finding was (IAA para’s 11 & 12):
i. The daughter was 10 years of age at the time;
ii. It involved a complaint of fraud by a woman living 1000km from Tehran;
iii. The original document was not translated and consequently given no weight;
iv. It was thus unlikely that the daughter would have been responsible for the crime;
v. It was unclear to the delegate ‘why the applicant would have considered it necessary for the family to flee the country rather than [attend Court and] sort out the issue’.
vi. ‘There is nothing in the review material to indicate that a ten year old child would be tried and convicted of a criminal offence when here was no basis for such a conviction.’
c. Yet the delegate acknowledged:
“I note the human rights observers criticise the Iranian judiciary for its lack of independence and denial of due process to detainees, and for the failure of trials to meet international standards of fairness.” (IAA para. 12)
6. In the alternative, by reason of the matters particularised at 5 a to c above, the decision of the IAA fell into jurisdictional error by failing to make an obvious inquiry about a critical fact being the arrest warrant resulting in a constructive failure to exercise jurisdiction.
The applicants submitted that Grounds 3 and 6 of the further amended application for review should be considered together.
At [4] of its reasons, the Authority recorded that it had had regard to the material provided to it by the secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (the Act).
At [5] of its reasons, the Authority recorded that it had obtained new information, that being the Department of Foreign Affairs and Trade (DFAT) Country Report for Iran published on 7 June 2018, which was noted as being the most recent assessment of the situation in Iran prepared for the purpose of protection status determinations.
At [6] and [7] of its reasons, the claims of the first applicant and the claims of the second applicant were respectively recorded as follows:
The applicant claims:
·He came to the attention of the Iranian authorities when he was aged 20; he was detained by the Basij for having consumed alcohol and sentenced to 80 lashes. Then in 2005 he went to Azerbaijan for a holiday. On returning to Iran his camera was examined and his photographs printed out. He was charged with having illegal images, convicted and sentenced to 80 lashes;
·In April 2013 his daughter, then aged ten, received a summons to appear in Court regarding an allegation of fraud that had been made against her. Due to his previous experiences with the Courts the applicant and his family fled the country;
·He had been raised in a devout Muslim family and was a practising Muslim. After the incident regarding his daughter he abandoned Islam and started to explore Christianity. In 2014 he converted to Christianity and was baptised in the Anglican church. He currently attends an Anglican church regularly. If returned to Iran he would talk to his friends and family about Christianity. He would be executed for converting to Christianity or talking about it;
·He has a Facebook page and has Facebook friends in Australia and Iran. If returned he would be imprisoned and tortured for his Facebook activities;
·He has recently been tattooed. In Iran people with tattoos cannot obtain government employment or enter government offices. If returned he would be interrogated about his tattoo;
·His details and those of his family were leaked onto the internet by the Department. He received a letter saying that the information was sent to websites in Iran. One of their fellow detainees had their family questioned by the Ettela'at because of this.
The applicant wife additionally claims:
·She had problems relating to the dress code in Iran, having been stopped a number of times with regard to her headscarf, sunglasses, makeup or nail polish. She knows people who were arrested for similar infractions;
·Since arriving in Australia she has suffered from anxiety and depression and has been hospitalised on several occasions. If she is returned to Iran she may not be able to access appropriate treatment or medication;
·She has a Facebook account and has “liked” anti-government posts. She has also posted photos of herself wearing western clothes and makeup;
·She has recently been tattooed and had her nose pierced. This could put her in danger if returned to Iran as tattoos and piercings are unlawful;
·She was born into a Muslim family but is now exploring Christianity and plans to be baptised. If she were to return to Iran she would preach Christianity wherever she could, even if they killed her.
As to Ground 1 of the application for review, the applicants assert that the Authority made illogical findings of fact in relation to the claims that the applicants had converted to Christianity. It was asserted that such illogicality was of the type as that discussed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
In MZYOI v Minister for Immigration and Citizenship (2012) 130 ALD 256 at [165] it was said by Dodds-Streeton J as follows:
“[165] The threshold for establishing illogicality is, however, on any view, as the appellant conceded, very high. Rares J stated in SZOOR (at [3]–[4]) that in SZMDS:
[3] … Crennan and Bell JJ held that illogicality or irrationality sufficient to give rise to jurisdictional error meant that, where the question was whether a decision-maker had been satisfied of a matter, the decision to which he or she came was one at which no reasonable decision-maker could arrive on the same evidence: at [130]. Their Honours appear to have decided that where a decision-maker gives reasons and those reasons do not reveal a logical or rational path of thought, but the decision is one to which some logical or rational mind could have come, even if no logic or rationality appears in the reasons given, a jurisdictional error will not be found. At least, that is what I understand their Honours to be saying in the following passage (at [131]; see too at [135]):
“[131] 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.” [Emphasis added.]
[4] Their Honours went on to say that the correct approach was to ask whether it was open to the decision-maker “to engage in the process of reasoning in which it did engage and make the findings it did make on the material before it”: at [133].”
At [13] of its reasons, the Authority recorded that since the applicant husband had arrived in Australia, he had claimed that he had converted to Christianity, providing certificates of baptism for himself and a daughter dated 27 July 2014. The Authority summarised the first applicant’s claims at [15] of its reasons. It noted a contradiction in his evidence about his introduction to Christianity with the time that the first applicant claimed to be considering conversion from Islam to Christianity. The Authority found that upon a reading of the first applicant’s PV interview material it was clear that the first applicant’s knowledge of any Christian concepts was very shallow. The Authority concluded that the first applicant’s attendance at Church and his baptism were solely for the purpose of furthering his claims for protection. It did not accept that the first applicant had abandoned Islam, and concluded that if he was returned to Iran he would continue to practise Islam as he did before he left. At [16] of its reasons, the Authority noted that the review material contained a screenshot of the first applicant’s Facebook page which included a Christian image. The name he used on Facebook bore no relationship to his legal name. The first applicant was recorded as having said that he and his wife had not advised their relatives in Iran of their conversion. There was no evidence that anyone in Iran would be aware of the first applicant’s baptism or attendance at Church in Australia. The Authority was not prepared to accept that the first applicant would declare himself a Christian, or would seek to identify as a Christian, if was returned to Iran. The Authority found that the first applicant did not have a genuine and ongoing commitment to the Christian faith, nor that he would be perceived to be a Christian in Iran because he had been baptised and attended Church in Australia.
As to the second applicant, the Authority noted at [22] of its reasons that she had claimed at the PV interview that she had been born into a Muslim family, but was at the time exploring Christianity, and had planned to be baptised during 2018. The Authority did not accept, at [23] if its reasons, that the second applicant would openly proselytise on the streets as claimed by her. The Authority did not accept that the second applicant was a genuine convert to Christianity. It also did not accept that she would seek to practise Christianity or proselytise if returned to Iran. In making the findings it did, the Authority was not acting illogically or irrationally. Though noting that the levels of Christian knowledge on the part of the first and second applicants was limited, that was not the only reason why the Authority failed to accept that the applicants had not genuinely converted. The Authority was not satisfied for other reasons that the applicants would continue to adhere to the Christian faith if they were returned to Iran. The Authority closely analysed the circumstances in which it was claimed by the applicants that they had arrived at a new faith. It’s analysis when arriving at its decision to reject the claims of the applicants was not illogical.
As to the Authority having found that there were a number of reasons why the applicants would not practice Christianity if returned to Iran, the Court had had regard to the decision of the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577 at [83] per Nicholas J where it was said:
“[83] If the Tribunal’s lack of satisfaction that the respondent was a person to whom Australia owed protection obligations was based on its assessment of the extent of the respondent’s knowledge of the Bible when compared to what might reasonably be expected of a person who believed in and practiced Christianity in China from 2004 until 2008, I would readily agree with Jacobson J that the Tribunal’s decision could not be permitted to stand. However, as its reasons for decision make clear, there were other matters which led the Tribunal to find that the respondent was not a credible witness. It drew upon these “singularly and cumulatively” in support of that finding.”
Further, even if such finding of the Authority was held to be illogical, by reason of the matters later referred to, such finding was not so material as to render the ultimate decision of the Authority as one which evidenced jurisdictional error. [1]
[1] Hossain v Minister for Immigration (2018) 359 ALR 1 per Edelman J at [69] – [72] inclusive;
Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 per Bell,
Gageler and Keane JJ at [45] – [46] inclusive.
As to Ground 5, the applicants’ complaint is that the Authority failed to take steps to cause the alleged summons issued to the first and second applicants’ 10 year old daughter [2] to be translated.
[2] CB page 254.
First, the Authority is not required to translate documentation into English. [3] It was required to have regard to all the material provided to it by the secretary pursuant to the provisions of s. 473CB of the Act. Whether or not it sought further information or clarification of an issue was a matter entirely for due consideration by the Authority when weighing up all of the evidence before it. It was not bound to seek out information or clarify all aspects of the applicants’ material claimed by the applicants to be cogent. After having considered what was claimed to be a legal summons having been issued to a 10 year old in respect of an alleged fraud offence, something which some might view as being inherently unlikely, the Authority was within its rights to give no weight to the summons allegations after it had considered all relevant matters in relation to such alleged summons. It was entitled to have grave doubts as to the plausibility of the claim. It did not fall into error in the manner in which it approached this aspect of the applicants’ claims. Further, it has not been established to the satisfaction of this Court that the failure on the part of the Authority to obtain a translation was a material factor which could have robbed the applicants of a successful outcome to their hearing, the applicants bearing the onus of proof in that regard. [4]
[3] Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 at [25].
[4] Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38 at [45] per Bell,
Gagelar and Keane JJ.
The discussion by the Authority at [12] of its reasons as to the approach of the Iranian judiciary on matters generally, and vis a vis what it might do in relation to a charge allegedly laid against a 10 year old child for fraud, was both reasoned, considered and rational. The Authority was dealing with an exceptional claim in respect of which it was entitled to have doubts. That it did not find that the applicants’ claims in that regard were plausible is unremarkable. No error has been demonstrated in relation to this Ground.
As to Grounds 3 and 6 of the application for review, the applicants assert that the Authority acted unreasonably in that they failed to invite the first applicant to participate in an interview surrounding aspects of the claims relating to the applicants’ knowledge of the Christian faith, as well as the circumstances surrounding the family’s departure from Iran. It was posed in the context of the assertion that the Authority ought to have sought out new information. First, the Authority is restricted in its consideration of any new information pursuant to the provisions of s. 473DD of the Act which relevantly 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.
As to the obligations of the Authority to seek out new information, such issue was considered by the Full Court of the Federal Court in DPI17 v Minister for Immigration (2019) 366 ALR 665 at [35] – [43] where it was said per Griffiths and Steward JJ as follows:
“[35] The plurality’s judgment in M174 (Gageler, Keane and Nettle JJ) establishes the following propositions:
(1) as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides “a limited form of review” of a “fast track decision” which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a “fast track applicant” (at [1]);
(2) the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied (at [17]);
(3) the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 139 ALD 181; [2013] HCA 18 (Li) (at [21]);
(4) the term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).” These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant (at [24]);
(5) although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably ([26]); and
(6) s 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to be considered by, the IAA under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision (at [35]).
[36] Both Gordon and Edelman JJ, who delivered separate reasons for judgment in M174, agreed that the power conferred by s 473DC was subject to the principles in Li concerning legal unreasonableness (see at [86] and [97] respectively). To similar effect, see CRY16 at [82]–[83].
[37] Other relevant principles which guide the application of the ground of review for legal unreasonableness are summarised in Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408; 163 ALD 1; [2018] HCA 30 (SZVFW) and Minister for Immigration and Border Protection v Haq (2019) 365 ALR 202; [2019] FCAFC 7 (Haq) at [31]–[37] per Griffiths J (with whom Gleeson J agreed). Three points deserve particular emphasis. First, legal unreasonableness is “invariably fact dependent and requires evaluation of the evidence” (see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; 308 ALR 280; 139 ALD 50; [2014] FCAFC 1 (Singh) at [47] per Allsop CJ, Robertson and Mortimer JJ and see also SZVFW at [84] per Nettle and Gordon JJ). Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases (Singh at [48] and Haq at [32]). It may well be that, for this reason, the appellant made clear that, on the appeal, he did not rely on DFW16. As Thawley J pointed out in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [42], there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. Thirdly, having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and s 473GA and GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a “natural justice lens” (DGZ16 at [69] and [72] per Reeves, Robertson and Rangiah JJ). Fourthly, as Thawley J correctly stated in CCQ17, merely because there has been a failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone a jurisdictional error.
[38] In CCQ17 at [51], Thawley J helpfully identified the following three essential steps in determining whether an established failure to consider exercising a discretionary power was legally unreasonable:
(1) identify the failure with precision;
(2) examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and
(3) evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.
[39] Each of those three steps is important but it is the third of those steps which highlights the fact that a mere failure to consider the exercise of the power under s 473DC is insufficient per se to give rise to jurisdictional error.
[40] It is appropriate to say something more about DGZ16 and the Minister’s strong reliance upon it. In particular, the Minister pointed to what the Full Court said in DGZ16 at [72] (which is set out in [32] above). That passage should be read in the context of the particular facts and circumstances of that case. As the Full Court had earlier emphasised at [70], that was not a case where the IAA had decided a point which was not the point decided by the delegate. Instead, as is made clear at [74], the Full Court was responding there to a contention made by the appellant there that, merely because the IAA had before it the appellant’s submissions and had accepted the new information in those submissions, the IAA was obliged, whether as a matter of legal reasonableness or otherwise, to invite the appellant to respond once the IAA formed specific reservations about the appellant’s case. It was in this context, and with particular reference to the circumstances of that case, that the Full Court stated at [76] that it was open to the IAA to disagree with the delegate’s evaluation of the material without providing the appellant with an opportunity to respond.
[41] These statements by the Full Court should not be viewed as establishing a general principle that the IAA is never obliged to provide the appellant with an opportunity to respond if the IAA disagrees with the delegate’s evaluation of material.
[42] It is significant that the Full Court in DGZ16 viewed the case there as being different from that in CRY16 (where the IAA affirmed the delegate’s decision to refuse the SHEV but on a different basis of reallocation which had not been addressed by the delegate). In DGZ16, their Honours expressly stated at [70] that in DGZ16 that “there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3)”. This statement serves to underline the central importance of paying close attention to the particular facts and circumstances in which the issue of legal unreasonableness is raised.
[43] Before turning to the particular facts and circumstances here, it is relevant to make some further observations. In performing its overarching duty to review a referred decision, the IAA is exhorted “to pursue the objective of providing a mechanism of limited review that is efficient quick, free of bias and consistent with Division 3 (conduct of review)” (see s 473BA of the Act). Performance of that duty is conditioned upon the IAA observing the obligations imposed upon it by Pt 7AA and by considering, in appropriate cases, whether or not to exercise the discretions which are conferred upon it. As the plurality noted in SZMTA at [9], with reference to the scheme of review under Pt 7 of the Act, some conditions “are implicit in the statutory scheme and some of which are implied through the operation of common law principles of interpretation”. Although those observations were directed to the review regime under Pt 7, we consider that they apply equally to the review regime under Pt 7AA. One of the implied conditions, which arises from the operation of common law principles of statutory construction, is the condition that consideration of the exercise of the statutory discretionary power of the IAA under s 473DC is subject to the test of legal reasonableness.
When analysing whether the Authority ought to have sought out such new information, it has been held that the question is whether the failure to consider the exercise of power, if that be the case, was one that no other reasonable decision maker could have arrived at. [5]
[5] Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 21 per Allsopp
In this case, it cannot be said that no other reasonable decision maker would have not considered seeking new information. The evidence before the Authority was such that it was endowed with an abundance of information allowing it to properly assess what was reasonable to consider for the purpose of arriving at any decision, as well as assessing what should or should not be accessed for the purpose of arriving at such decision. The Authority was singularly placed to make such decisions. That it did not make a decision which accorded with the assertions of the applicants represents the process of decision making afforded to, and undertaken by, the Authority. It didn’t find that there were exceptional circumstances warranting it obtaining any new information. The questioning of such process goes to its fact-finding exercise which is not reviewable here.
In any event, the applicants have not demonstrated that if the exercise for which they proposed had been carried out, there would have been realistically any different result. This Ground is without merit.
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.”
Neither could the decision 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.”
It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ in Minister for Immigration and Citizen v SZIAI [2009] 259 ALR 429 at [25] - [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
The applicants have not demonstrated any jurisdictional error on the part of the Authority.
The application for review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 1 October 2019
CJ, Griffiths and Wigney JJ
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