EHA18 v Minister for Home Affairs
[2019] FCCA 1587
•30 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EHA18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1587 |
| Catchwords: MIGRATION LAW – Applications for protection visas – country information – fears of harm unfounded – adverse credibility findings – applications dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.473CA, 473CB. 473DD. |
| Cases cited: Jung v Minister for Immigration and Border Protection [2017] FCA 173. Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593. AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89. |
| First Applicant: | EHA18 |
| Second Applicant: | EHB18 |
| Third Applicant: | EHC18 |
| Fourth Applicant: | EHD18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 859 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 30 May 2019 |
| Date of Last Submission: | 30 May 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 30 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms F. McNeil |
| Solicitors for the Applicant: | Stamford Law |
| Counsel for the First Respondent: | Mr B. McGlade |
| Solicitors for the First Respondent: | MinterEllison |
ORDERS
That the amended application filed on 14 May 2019 be dismissed.
That the First, Second, Third and Fourth Applicants pay the First Respondent’s costs of and incidental to the application and amended application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 859 of 2018
| EHA18 |
First Applicant
| EHB18 |
Second Applicant
| EHC18 |
Third Applicant
| EHD18 |
Fourth Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicants are citizens of Iraq. The first applicant is the mother of the second, third and fourth applicants. The second and third applicants are the first applicant’s daughters. The fourth applicant is the first applicant’s son.
The applicants arrived in Australia on 15 September 2012 as unauthorised maritime arrivals. On 13 September 2016, they applied for temporary protection (Class XD) (subclass 785) visas. On 1 May 2018, a delegate of the Minister refused the applicants’ visa applications. As the delegate’s decision was a fast track reviewable decision, the Minister referred the delegate’s decision to the Immigration Assessment Authority (‘the Authority’) pursuant to the provisions of section 473CA of the Migration Act 1958 (Cth)(‘the Act’). On 3 August 2018, the Authority affirmed the delegate’s decision.
On 20 August 2018, the applicants filed an application in this Court for review of the decision of the Authority.
At [4] of the Authority’s reasons, it was recorded that the Authority had had regard to the material provided to it by the secretary, pursuant to the provisions of section 473CB of the Act.
At [19] and [20] of the Authority reasons, the respective claims of the applicant and the applicant’s children were set out as follows:
·“In 1984 her brother Salam spoke out against the then government of Iraq, the Saddam regime. All of their family were arrested and detained. The applicant suffered physical and sexual abuse. She and other members of her family were imprisoned for over a year before being deported to Iran. Salam was executed by the regime;
· While in Iran the applicant married and bore four children. The family resided in Qom. In August 2007 her husband’s brother, Mohammed Ali al-Hassani, was assassinated by a man called Halim Bashir, a member of the militia group Asa’ib Ahl Al-Haq (AAH). Halim Bashir was sentenced to death but escaped from gaol in December 2011. He subsequently went to Qom and threatened the applicants. They fled to Iraq;
· After arriving in Iraq they stayed with members of her husband’s family, who talked about marrying her daughters to their cousins. She and the children fled to Australia. If they return to Iraq and the children refuse to marry their cousins she and they will be killed;
· When they returned to Iraq they were kept locked up by their uncles while arrangements were made to marry them off to their cousins against their will. When they indicated that they did not want to marry they were beaten. If they were to return to Iraq they would be killed due to disobeying their uncles. They cannot relocate to any other part of Iraq because their whereabouts would be revealed to their tribe.”
The grounds for review are as set out on page 3 of the amended application for review filed on 14 May 2019. Those grounds for review are as follows:
“1. The applicants claimed to fear harm from the militia group Asa’iub Ahl al-Haq if required to return to Iraq. The Immigration Assessment Authority (“the IAA”) did not deal with, or make a finding which disposed of, this claim. The IAA’s failure to deal with the claim involved a jurisdictional error.
2. The applicant’s agent provided to the IAA a number of documents, including a document titled “Declaration of discharge and blood shedding”. The IAA, on application of s 473DD of the Migration Act, found that the document was not “credible personal information” and the IAA must therefore not have regard to the document. A basis for the IAA’s finding was (at [15]) that “the four applicants completed separate statements of claims in August 2016” and “at no point in these documents … has there been any claim or indeed any indication that a declaration had been made by members of the applicant’s husband’s tribe calling for the blood of the applicant and her three children to be shed”. The IAA overlooked material in the mother’s statement of claims in the course of making this finding. In the circumstances, the IAA fell into jurisdictional error in the course of exercising its discretion under s 473DD.
3. The applicants claimed that on returning from Iran to Iraq in July 2012 all of the applicant children were imprisoned by their paternal uncle with the intention that they would marry their cousins. The applicants feared the children, if required to return to Iraq, would be subject to forced marriages. The IAA rejected this claim because the applicants did not refer to or provide information concerning this claim in their arrival interviews. The IAA, by placing significant weight on an omission by the applicants in their arrival interviews, contravened the principle explained in Minister v MZZJO (2014) 239 FCR 436 at [55]-[57], giving rise to jurisdictional error.”
Ground 1 of the application for review asserts that the Authority did not deal with, or make a finding which disposed of, that claim, and it is accordingly further asserted that the Authority’s failure to do so constituted jurisdictional error. Counsel for the applicant, Ms McNeil, took the Court to passages of the statements made by each of the applicants in support of the submission that the militia group, Asa’iub Ahl Al‑haq, had been referred to in the statements, but had nevertheless not been specifically addressed by the Authority in its reasons. It was submitted that the applicants had a well-founded fear of persecution or death, should they be returned to Iran, based upon the actions of that militia group (AAH).
Considerable care ought to be taken by a Court before concluding that the relevant tribunal or authority had not properly considered or taken into account the particular claim or contention the subject of evidence before it. [1] Factors tending against the submission advanced on behalf of the applicant include the fact that the reasons of the Authority specifically deal with the assertion that the applicants claimed that they had been forced to flee Iran in July 2012 because they had been threatened by one Halim Bashir, a person central to the claims of the applicants. The Authority had before it, as referred to earlier, the statements made by each of the applicants, and the Authority recorded that it had had regard to the material before it.
[1] Jung v Minister for Immigration and Border Protection [2017] FCA 173
In paragraph 24 of the first applicant’s statement (see page 263 of court book), it was provided as follows:
“24. In approximately 2007 my husband’s brother was killed. He was a politician who held a high position in government. He was killed by Halim Bashir. Bashir is a well known criminal in Iraq. He belongs to a militia called Aasaeb Ahel alhaq This militia is supported by Iran. He was jailed but escaped to Iran in 2011.
25. After Bashir escaped jail my husband’s brother’s family contacted me and warned me to get out of Iran because he might harm me and my daughters. Initially I didn’t want to leave Iran because my daughters were completing their university. But then in early 2012, my daughters told me that there was a car that kept following them.
26. Bashir then contacted me and spoke to me and he said things like I will get my revenge” After the death of my husband’s brother, my husband’s family took revenge on Bashir and killed a member of his family. This is why he wanted to take revenge on me and my children.
27. One day Bashir came to my home and broke the door and poured petrol in to the home. He then threatened us and left. At the time we did not know it was Bashir but he later called and confirmed what he had done.
28. Bashir is a known rapist and I was scared he was going to rape me. I think he wanted revenge because of the ongoing dispute between him and my husband’s family. That is when I decided to leave Iran and return to Iraq.
29. I returned back to Iraq knowing that circumstances would not be good but I was willing to put up with that as long as my children were safe.
30. When I got to Iraq, family members of my husband’s family talked about marrying my daughters to some cousins from my husband’s family. If this happens, I know what it is expected of for my daughters. I would not be able to tolerate seeing my daughters in that position. I have gone through a lot to make sure my daughters had an education and a life different from mine.”
It can be seen from such extracts above that the applicant was making specific reference to Halim Bashir. The applicant also put in context what were said to be her fears concerning the individual named Bashir. At paragraph 30 of the Authority reasons, the Authority has dealt with the alleged involvement of Halim Bashir in the context of the claims made against him by the applicants. At [31] of its reasons, the Authority found that aspects of the assertions made on behalf of the applicants were implausible. One such assertion was that the said Bashir would have travelled 1,000 kilometres to a different country to break a window or a door, and thereafter pour petrol in the applicant’s house, before leaving., without doing more
Reference was also made by counsel for the applicants to submissions made on behalf of the applicants’ representative dated 10 April 2018 (see court book pp 361‑381 inclusive). The Court was taken to page 363, where in the submission it was asserted that the applicants feared persecution from a militia group, AAH, and from the applicants’ husband’s/father’s tribe. It was submitted that there was a real chance of serious harm to the applicants in all parts of Iraq if they were to be returned, and that there was no effective protection available to the applicants, should they be returned.
It must be inferred by reason of what is contained in paragraph [4] of its reasons, that the Authority had had regard to the material provided to it by the secretary. That material included the statements of the applicants, as well as the submissions made on their behalf by their agents. Those agents’ submissions were specifically referred to in paragraphs 15 and 18 of the Authority’s reasons. In addressing the submissions, the Authority has carefully considered the contents of those submissions, and appropriately recorded its findings based on its consideration of such submissions, as well as the contents of statements relied upon by the applicants.
At [19] of its reasons, the Authority specifically noted that Halim Bashir was a member of AAH. It cannot be suggested that the Authority did not appreciate the contextual significance of Halim Bashir’s involvement, as set out in the applicants’ statements and in the submissions, because, relevantly, the Authority specifically noted his involvement. Indeed, at [31] of its reasons, the Authority, having had regard to all of the statements of the applicants, did not accept that the applicants were of any interest to Bashir, finding that the allegations in relation to him were a fabrication. The Authority was entitled to make such factual findings based on the evidence before it.
In such circumstances, the submission that an inference should be drawn that the Authority did not properly consider the claims involving AAH, as set out in ground 1 of the application for review, is unable to be accepted.
The Court relies, in that regard, upon the judgment of the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47], where it was said, per French, Sackville and Healy JJ:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
The claims advanced by the applicants against AAH were not specific in character. They revolved around the involvement of, and were focused on, the alleged likely proposed future conduct of Halim Bashir. In such circumstances, it cannot be found that there were any iron clad established facts relating to AAH which the Authority was bound to consider.
The Court further relies upon the decision of the Full Court of the Federal Court in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18], where it was said:
“[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration & Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
·The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration & Border Protection [2017] FCA 512 per Barker J (at [67]).
·These principles apply to the IAA regime: Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58] – [61] per Black CJ, French and Selway JJ).
(Emphasis added.)
·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE) at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration & Border Protection (2016) 241 FCR 214 per Markovic J (at [37] – [38])). In SZUTM, Markovic J said:
[37] While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
[38] Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration & Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.”
Though the applicants have made specific allegations against Halim Bashir, there is no evidence that the AAH, as a militant group, have any interest in the applicants, with a view to causing them harm. That ground of review is without merit.
As to the second ground of review, such ground relates to a document described as a “declaration of discharge and blood shedding” (see court book page 617).
The document, as translated, is as follows:
“In the name of God, Most Gracious & Most Merciful
Declaration of discharge and blood shedding
We the undersigned, children of Haj Hasan Abbas Alhassani, declare our discharge and shedding of blood of Bushra Fawzi Jodah al-Alyawi, her children Hajer, Fatima and Mustafa, being the family of our brother Abdulali Hasan Abbas, because of their disgraceful act that is rejected by customs and forbidden by religion through their non-obedience to our order, and their father’s order, and because of their escape from our brother’s home without his knowledge and ours. Therefore, we the undersigned decided with approval from Haj Ali Al Hachem Alhassani, the sheikh of our whole tribe, to shed blood of the so-called above and her abovementioned children, and discharge ourselves from them to doomsday. Anyone who finds them, can punish them and shed their blood, and would not demand blood money and blood from us, and would be thanked for removing the shame inflicted on us and our tribe. We are clear of anything they do and anything inflicted on them to doomsday, and peace be upon you.
[Illegible signature of:] Ali Al Hachim
Thursday, 27 / 12 / 2012
[Illegible signature of:] Abdelrahim Hasan Abbas.
[Illegible signature of:] Abdellatif Hasan Abbas.
[Illegible signature of:] Abdulali Hasan Abbas.
[Illegible signature of:]Mohsin Hasan Abbas
[Illegible signature of:] Ahmed Mohammed Ali Hasan Abbas
Some observations about such document are as follows:
a)The document is non-specific as to what constitutes a “discharge” or what constitutes “blood shedding”.
b)The document is non-specific as to what disgraceful act, contrary to customs and forbidden by religion, was said to justify the possibility of blood shedding.
c)The document was non-specific as to what shame would be removed upon any blood shedding in respect of the applicant or her children.
There was no evidence, apart from vague references in the statements and in the submissions of the first applicant, as to what tribal custom had allegedly been broken or contravened, or whether any such alleged breach prior to the alleged date of the declaration constituted a continuing breach of custom warranting perpetual blood shedding/letting as countenanced in the “declaration”.
Country information (referred to at court book 372) from UNHCR was contained in a report dated 15 January 2018, and was not specific as to what may have occurred prior to the applicant’s departure from Iran in 2012. Further, at [15] of the Authority reasons, the issue of whether such alleged declaration constituted credible personal information requiring its consideration, pursuant to the provisions of section 473DD(b)(ii) of the Act, was carefully dealt with by the Authority. It was noted that although dated December 2012, it only came to the attention of the Authority shortly before the hearing and consideration of the applicants’ claims in 2018. No acceptable reason was provided for such delay.
The document had not been provided to the delegate, nor had it earlier been referred to by the applicants. The Authority stated, in relation to such document: [2]
“… I am not satisfied that in these circumstances the document is capable of being believed and consequently do not accept that it is credible personal information. In relation to the text message dated 26 March 2018, I accept that the applicants’ solicitor underwent surgery, but I am not satisfied that this explains why in this instance the information could not have been provided to the delegate. As neither arm of section 473DD(b) is met, I am prevented from considering the documents listed at (a), (b) and (j) above.”[2] At paragraph [15] of the Authority’s reasons – See court book p 648.
(Document (b) was the alleged declaration of discharge and blood shedding).
The Authority has comprehensively dealt with, and appropriately considered the effect and substance of the alleged document, the subject of ground 2 of the application for review. That ground is without merit.
As to the third ground of review, the Court was referred to the decision of the Full Court of the Federal Court in MZZJO v Minister for Immigration (2014) 239 FCR 436 and, in particular, to [56]-[57] inclusive thereof where it was said:
“[56] On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.
[57] Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.”
The Court notes that people who are recently disembarked from a vessel which had been at sea for a considerable period of time are less likely to be as focused and responsive to questions asked of them upon their disembarkation as opposed to those people who have had an opportunity to acclimatise in their new environment. The Authority, at [32] of its reasons, closely dealt with the applicants’ claims concerning forced marriages as contended for by each of the applicants.
The Authority noted that there were inconsistencies concerning the applicants’ claims in that regard, as well as inconsistencies about factual matters relating to the places of departure from Iraq – two of the applicants contending that they had departed from Muthanna Province, whereas two contended that they had departed from Basra. It was also noted by the Authority that before the Authority, it was claimed that the alleged threat of forced marriages was the reason why the applicant and her children had departed Iraq. The Authority found, in that context, that it did not accept that the applicant and the second and third applicants would not have mentioned that claim upon their arrival in Australia.
It was further noted by the Authority that the applicant’s first daughter was 23 years of age when she departed Iraq, and had been resident in Iraq for at least five years without having been forcibly married to a relative, or any other man, presumably at the behest of Mr Bashir, or anyone else. It was noted by the Authority that the applicants’ details had not at any point been divulged by the Department due to any data breach, and that accordingly, personal information could not have been accessed via the relevant website.
The Authority has closely detailed and considered the claims of the applicants which had been made before it.
It cannot be said that the Authority failed to make an obvious inquiry about a critical fact. In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]-[27], it was said per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, as follows:
“[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.”
Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:
“[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.”
No jurisdictional error has been demonstrated on the part of the Authority.
The application for review is without merit and is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 26 June 2019
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