Fantastic Services Group Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 62
•21 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Fantastic Services Group Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 62
File number(s): MLG 3339 of 2018 Judgment of: JUDGE EGAN Date of judgment: 21 January 2021 Catchwords: MIGRATION – Nomination application for the position of Project Administrator – failure of applicant to adduce compelling evidence as to its business operations – failure by applicant to discharge evidentiary onus – no jurisdictional error established – application dismissed. Legislation: Migration Act 1959 (Cth), ss. 140GB, 140GBA, 359A, 376.
Migration Regulations 1994 (Cth), r. 2.72(10)(f).
Cases cited: Khan v Minister for Immigration & Anor [2016] FCCA 333.
Khan v Minister for Immigration and Border Protection [2016] FCA 877.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Number of paragraphs: 32 Date of last submission/s: 18 January 2021 Date of hearing: 18 January 2021 Place: Brisbane Solicitor for the Applicant: Mr Estrin of Estrin Saul Solicitors Counsel for the First Respondent: Mr Barrington Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance save as to costs ORDERS
MLG 3339 of 2018 BETWEEN: FANTASTIC SERVICES GROUP PTY LTD
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:
21 JANUARY 2021
IT IS ORDERED THAT:
1.The Amended Application for Review filed on 21 December 2020 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicant is a company which advertised for the position of a “Project Administrator” within its organisation on 1 February 2016. Such advertisement was as follows: [1]
[1] Court Book (CB) pp. 31 – 32.
“Fantastic Services Group Pty Ltd is a residential and commercial services Franchise company based in Melbourne, VIC but also operating in Sydney NSW. The company also has significant operations in United Kingdom and also in the United States of America.
We have over 80 franchisees or contractors on the road in Australia, each with their own employees. We provide our franchisees with Online and Offline Marketing, Sales, Branding, Websites, Web Development, Call Centre Management, CRM Systems, Mobile Apps, Search Engine Optimisation, Scheduling, Customer Care Issues, Financial Assistance, Set Up, and Training.
Fantastic Services Group Pty Ltd employs a staff of over 100 people dedicated to the Australian Market and mainly based in our European offices (located in Bulgaria and United Kingdom) ranging over many departments including Sales, Customer Care, Finance, Marketing, Web Development, Contractor relations, SEO, IT and Human Resources.
Fantastic Services Group Pty Ltd has recently decided to develop and expand its services to Perth, WA and Brisbane, QLD and has already established offices and websites in both cities. We are looking for a Project Administrator to help develop the business in these new markets.
The ideal candidate would be a very dedicated to the Franchise business person, speaking Bulgarian and English fluently and be able to handle a number of functions involved in the continued operations of the enterprise. This includes:
•Creating and implementing projects, programs and strategies to generate revenue and profit,
•Keeping projects running smoothly,
•Administrative tasks,
•Resource coordination
•Collecting and analysing data,
•Scheduling,
•Ensuring compliance with government and safety regulations.
Other duties will include:
•Researching, developing, administering and evaluating programs in response to the identified needs of client groups and community organisations,
•Creating vendor assessment and contract negotiation.”
On 1 April 2016, the applicant applied for the Nomination of one Yulian Siderov for the position of Project Administrator under the ANZSCO Code 511112. That Code provided as follows:
“511112 PROGRAM OR PROJECT ADMINISTRATOR
Alternative Title: Project Coordinator
Plans and undertakes administration of organisational programs, special projects and support services.
Skill Level: 2”
Code 511112 was to be read in conjunction with ANZSCO Code 5111, which relevantly provided as follows:
“UNIT GROUP 5111 CONTRACT, PROGRAM AND PROJECT ADMINISTRATORS
CONTRACT, PROGRAM AND PROJECT ADMINISTRATORS plan and undertake administration of contracts, organisational programs, special projects and support services.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia: AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
In New Zealand: NZ Register Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
•Developing, reviewing and negotiating variations to contracts, programs, projects and services
•Responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected
•Managing paperwork associated with contracts, programs, projects and services provided
•Working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met
•Advising senior management on matter requiring attention and implementing their decisions
•Overseeing work by contractors and reporting on variations to work orders
•Preparing and reviewing submissions and reports concerning the organisation’s activities
•Collecting and analysing data associated with projects undertaken, and reporting on project outcomes
•Reviewing and arranging new office accommodation
Occupations:
511111 Contract Administrator
511112 Program or Project Administrator”
Regulation 2.72(10)(f) of the Migration Regulations 1994 (Cth) (“the Regulations”) relevantly provided that one of the criteria required to be satisfied in respect of an application made by a standard business sponsor was that the position associated with the nominated occupation was genuine.
On 14 September 2016, a delegate to the Minister refused to approve the Nomination.
On 28 September 2016, the applicant applied to the Administrative Appeals Tribunal (“The Tribunal”) for review of the delegate’s decision.
On 15 February 2018, the Tribunal invited the applicant to provide updated and current information about the position the subject of the application by 1 March 2018.
On 1 March 2018, a registered migration agent engaged by the applicant provided additional evidence in support of the Nomination application, including a document on the applicant’s letterhead entitled “Genuine Position Statement and raising the decision-makers concerns – Nominee, Yulian Siderov”.
On 18 May 2018, the Tribunal received from the department two anonymous allegations concerning the applicant and the nominee by means of the provision of certificates given under s. 376 of the Migration Act 1958 (Cth) (“the Act”). Pursuant to the provisions of s. 359A of the Act, the applicant was asked on 19 June 2018 to comment on, or respond to, an anonymous allegation that the nominee was operating a cleaning business using illegal workers and subcontractors.
On 3 July 2018, the Tribunal invited the applicant to appear at a hearing on 30 July 2018. On 17 July 2018, the applicant’s representative provided further documents in support of the nomination application.
Hearings before the Tribunal took place on 30 July 2018 and 10 September 2018. A person named Cederman, who said he was involved in the establishment of the applicant’s business, appeared before the Tribunal on 30 July 2018, his having been authorised to do so by a then director of the applicant named McDonald. At such hearing, it became apparent that Mr Cederman no longer had any involvement in the applicant’s affairs. The Tribunal adjourned the matter for further hearing to 10 September 2018 so as to allow for evidence to be given before it by the nominee, Mr Siderov, as well as by an authorised representative of the applicant who had up-to-date knowledge as to the business operations of the applicant.
At the hearing on 10 September 2018, Mr Siderov appeared before the Tribunal with the assistance of a migration agent, but no other director or employee of the applicant able to give up-to-date evidence as to the applicant’s business operations was in attendance.
On 1 October 2018, the Tribunal affirmed the decision of the delegate.
At [15] of its reasons, the Tribunal recorded that the issue in the present case was whether the applicant met the criteria for approval of the nomination, noting that the Tribunal must approve the nomination if the applicable requirements in r. 2.72 of the Regulations and ss. 140GB(2) and 140GBA of the Act had been met.
At [36] of its reasons, the Tribunal, when commenting upon the lack of documentary evidence of regular reporting by Mr Siderov to Mr McDonald, or any other director of the applicant, as to the affairs of the company and its operations, the Tribunal said as follows:
“[36] In the genuine position statement of 23 February 2018 Mr McDonald was referred to as “making all decisions related to the company and he effectively operated the business”. The Tribunal notes that whilst Mr Cederman claimed to be instrumental in the establishment of the applicant he did not know Mr McDonald. Further Mr McDonald did not appear on the correspondence referred to by the nominee evidencing his role. Other than the verbal evidence of the nominee there is no documentation evidencing that the nominee regularly reports to the “Director”. The Tribunal notes that there are three directors.”
At [37] of its reasons, the Tribunal, when commenting upon the failure of the applicant to cause anyone with knowledge of the up-to-date business operations of the applicant to appear and give evidence before the Tribunal, said as follows:
“[37] The applicant, according to Mr Cederman, is considered to be a proxy company of the Bulgarian Company. The name or identity of the Bulgarian company was not provided to the Tribunal. The Tribunal notes that 2 of the shareholders of the applicant are Bulgarian companies. The absence of the directors input and particularly that of Mr McDonald, “the controlling mind” of the applicant (as stated in the genuine position statement), meant that the Tribunal could not clarify how the operations of the applicant were managed in order to determine whether the relationship between the applicant and nominee is as claimed.”
At [38] of its reasons, the Tribunal, when analysing the evidence of Mr Siderov in the context of the claims as set out in the applicant’s genuine position statement of 23 February 2018, [2] and by reference to the task headings for the positon of Project Administrator as set out in ANZSCO unit group 5111, made findings as follows:
[2] CB pp. 119 – 130 inclusive.
“[38] In the Genuine Position statement of 23 February 2018 the applicant set out the tasks described by ANZSCO for the nominated occupation and submitted details of the actual tasks that the applicant claims are performed by the nominee in alignment with the ANZSCO description. The ANZSCO tasks are in italics below.
•Developing, reviewing and negotiating variations to contracts, programs, projects and services. It was alleged that the nominee reviews and develops franchise agreements, vehicle and equipment lease agreements and assists with various declarations with the help and guidance of a lawyer. Further, the nominee is alleged to be responsible for establishing and implementing projects between Australia and Europe to streamline processes including sales, customer care, marketing and finance. However, the oral evidence of Mr Cederman and the nominee was that all transactions from the bookings of jobs, the sourcing of jobs for franchisees and the payment for work done occurs through email exchanges with Bulgaria. Further they stated that Mr Feltham negotiated the franchise agreements in his role as Franchise recruiter. The equipment rental agreement sample bears the name of Radoslav Radev “for and on behalf” of the applicant as does the sample hire purchase document. A further example of a franchise agreement requires the signature of a director. A number of email exchanges have occurred between the nominee and, what appears to be, various individuals from the Bulgarian office whereby the nominee communicates issues and seeks instructions from them in relation to securing a franchise agreement, ordering flyers, obtaining banking details of jobs and confirming that marketing, the business plan for a Master franchise agreement and cities to expand in to will be decided by those persons (see email dated August 9 from Georgi Chikolov). The email addresses for these people suggest that they are in Australia as they have a reference to “AUS” before the addresses. However, as stated by the nominee they are not situated in Australia.
•Responding to inquiries resolving problems concerning contracts, programs, projects, services provided, and persons affected. It was submitted that the nominee helped to develop and optimise work processes within the organisation and the franchisees and that the nominee is the contact person for complaints and queries. However, the evidence of Mr Cederman and the nominee was that queries and complaints were dealt with by email through Bulgaria. The nominee relied on some email exchanges about parking issues in support of the submission that he managed the complaints process. An undated exchange from Dan Gamage, addressed to “Hi All”, in relation to various matters was responded to by the nominee. However, part of the complaint was that the complainant, presumably a franchisee, was not receiving monthly Skype meetings with the franchise advisor, “Tsvety”. Email exchanges in relation to this matter were submitted but were directed to and from the Franchise Consulting Department of the applicant. The vast majority of the emails forwarded to the Tribunal suggest that the nominee is a participant in some exchanges about business plans, insurance processes and future expansion of the business and not the decision maker.
•Managing paperwork associated with contracts, programs, projects and services provided. It was submitted that the nominee manages all paperwork associated with: complaints and or problems; manages the paperwork associated with contracts; manages problems by ensuring that relevant parties are notified; and oversees the company operation manual, disclosure documents and receipts. However, the oral evidence was that the first contact for a complaint was a Bulgarian email address. Further the email correspondence submitted shows that the nominee communicates some information to Bulgaria and seeks instructions as to how to proceed. The contact details in the sample “Supplier Agreement” dated 21 September 2017 provide contact details for “Mason or Sue” at email addresses in corporate and finance for the Fantastic Group. The nominee has signed it for and on behalf of the applicant without establishing that he has the legal capacity to bind the applicant company. The sample invoice submitted for a used vehicle dated 24 January 2018 does not evidence any involvement of the nominee.
•Working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met. It was submitted that the nominee works closely with the director of the company and the 2 quality control managers. The Tribunal notes that there are 3 directors of the applicant and the Australian director resides in Perth. No evidence was submitted evidencing exchanges between the nominee and Mr McDonald other than the nominee’s oral evidence that he has weekly Skype or Zoom exchanges with the shareholders. There was a lack of corroborating evidence of the involvement of the nominee with the trainers on a regular basis. It was also submitted that the nominee is required to develop projects for creating a strategic and operation business “planner” based on specific time frames for overall goals and targets. It is not clear to the Tribunal what is being referred to here.
•Advising senior management on matters requiring attention and implementing their decisions. The Tribunal refers to comments above. There is no verifiable evidence of regular reporting to the “Director” or shareholders. Mr McDonald is a signatory on the nominee’s employment contracted dated 21 February 2018. The email exchanges are between other employees of the Bulgarian operated as stated in the oral evidence. However, Mr McDonald does not appear as a signatory on the example franchise agreement provided and only one of the example agreements is signed by Mr Anton Skarlatov as director of the applicant. The nominee gave evidence that this director resides overseas and established an address in Melbourne to facilitate the registration of the applicant. The nominee gave evidence and provided email support for exchanges with the Bulgarian office to discuss issues and seek instructions as to how to proceed with matters such as insurance and parking. It therefore appears that the nominee is instructed by the Bulgarian operation rather than a director of the applicant.
•Overseeing work by contractors and reporting on variations in work orders. It is alleged that the nominee collects information from the Quality Control Manager in relation to services performed by Franchisees and Contractors, analyses it, reports on it and determines whether a new project will be beneficial for the organisation. Further it is alleged that he monitors the adherence to the projects implemented, reports on changes and develop projects for better quality service results. Whilst there was insufficient evidence submitted that evidences the nominee overseeing the work of contractors or variations in work order there were emails submitted wherein the nominee had various communications with the Radoslav and Georgi who are not employed by the applicant.
•Collecting and analysing data associated with projects undertaken, and reporting on project outcomes. It was submitted that the nominee’s position inherently requires him to collect and analyse the weekly reports he receives from the Service Developments department and from the Franchise consultants. Whilst it is not apparent where this department or the consultants are based or who employs them there is no supportive evidence of any such reports.
•Reviewing and arranging new office accommodation. The applicant submitted some email exchanges with Mark Smedley of Dixon Kestles, real estate, evidencing the nominee facilitating the signatures of the directors of the applicant in signing of a lease.”
It was conceded by Mr Estrin on behalf of the applicant that the applicant bore the onus of adducing evidence which tended to support the applicant’s contention that it satisfied the relevant criteria for the grant of the nomination application. The Court finds that the absence at either of the two (2) hearings of a person other than Mr Siderov who had been, and was at the time of such hearings, integrally involved in the affairs of the business, rendered the applicant unable to relevantly discharge its onus.
Application for Review
On 5 November 2018, the applicant filed an Originating Application for Review of the decision of the Tribunal. On 21 December 2020, the applicant caused its lawyer to file an Amended Application for Review, the grounds for which were as follows:
“Grounds of application
The Second Respondent’s decision was affected by jurisdictional error in that it asked the wrong question when determining whether the Applicant’s nomination met sub-regulation 2.72(10)(f) of the Migration Regulations 1994 (Cth).
Particulars
a.The Second Respondent’s task was to determine whether, as required by sub-regulation 2.72(10)(f) of the Migration Regulations 1994 (Cth), the position associated with the nominated occupation was genuine;
b.The Second Respondent’s line of inquiry and findings were based on the tasks the nominee had been undertaking at the time of the hearing and in the past; it failed to inquire as to what the tasks of the position would be, if the nomination were approved.
c.While the past and present are relevant and informative, they are not determinative; they do not provide a full answer to the question: “what is a genuine position proposed by a nomination under section 140GB of the Migration Act 1958 (Cth)”?
At the hearing before the Court, Mr Estrin, on behalf of the applicant, conceded that the applicant’s case conducted before the Tribunal was so conducted on the basis that the Tribunal was to carry out an assessment of the genuineness of the nominated position based upon a consideration of the tasks involved in the position of Project Administrator which had been carried out by Mr Siderov over a number of years, as well as the contemplated performance of such tasks in the future. As an example of a party both approbating and reprobating, Mr Estrin nevertheless submitted that the Tribunal was in error in failing to ask itself what was submitted to be the correct question – namely whether, in a “forward looking” sense, and for future purposes to be judged at the time of the making of the decision on the nomination application, the position of Project Administrator was genuine or not. It was submitted that because the Tribunal had considered and taken into account the performance of the role by Mr Siderov in the past, it had erred, and had thereby fallen into jurisdictional error.
It was submitted that during the course of the hearings before the Tribunal, the Tribunal had focussed upon the past involvement of Mr Siderov in the affairs of the applicant when it should have focussed upon the genuineness of the nominated occupation “looking forward”. [3] Reliance was placed upon the provisions of s. 140GB of the Act, which relevantly provided as follows:
[3] See “DME-1” to affidavit of Mr Estrin filed on 21 December 2020 at T. 10.30, 17.25 – .30 and 17.30
and see “DME-2” to Estrin affidavit at T. 3.5 - .10.
“Section 140GB – Minister to approve nominations
(1)A person who is, or who has applied to be, an approved work sponsor, or a person who is a party to negotiations for a work agreement, may nominate:
a.an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
i.the applicant or proposed applicant’s proposed occupation; or
ii.the program to be undertaken by the applicant or proposed applicant; or
iii.the activity to be carried out by the applicant or proposed applicant; or
b.a proposed occupation, program or activity.
(2)The Minister must approve a person’s nomination if:
a.in a case to which section 140GBA applies, unless the person is exempt under section 140GBB or 140GBC—the labour market testing condition under section 140GBA is satisfied; and
aa.in a case in which the person is liable to pay nomination training contribution charge in relation to the nomination—the person has paid the charge; and
ab. in any case—the person is an approved work sponsor; and
b.in any case—the prescribed criteria are satisfied.
Note 1: Section 140GBB provides an exemption from the labour market testing condition in the case of a major disaster. Section 140GBC provides for exemptions from the labour market testing condition to apply in relation to the required skill level and occupation for a nominated position.
Note 2: See section 140ZM for when a person is liable to pay nomination training contribution charge.
(3)The regulations may establish a process for the Minister to approve a person’s nomination.
(4)Different criteria and different processes may be prescribed for:
a.different kinds of visa (however described); and
b.different classes in relation to which a person may be approved as a work sponsor.”
In particular, it was submitted that as a matter of construction, the matters in s. 140GB(a)(i) – (iii) of the Act which the Tribunal ought to have taken into account were to be viewed prospectively. It was submitted that because of the use of words such as “proposed application”, “the program to be undertaken”, and “the activity to be carried out by the applicant or proposed applicant” in sub-para (a) of the section, the legislature had not intended that any past conduct ought to have formed part of the deliberative process. It was submitted that because the section made no reference to any past work undertaken by a visa applicant whilst that applicant was on a bridging visa, the Tribunal ought not to have had regard to any such past work or past employment when deciding whether to grant the 457 visa or not.
The Court does not accept the submissions made on behalf of the applicant. The Tribunal was entitled to look at the characteristics of the past employment of the nominee in the context of the applicant’s business structure for the purpose of assessing whether or not the relevant criteria for the grant of the visa would be satisfied if the 457 was granted. That included the question of whether or not the position was genuine. The Tribunal understood that it had to look at the proposed occupation and assess whether such occupation satisfied the relevant criteria in a manner consistent with what His Honour Judge Manousaridis said in Khan v Minister for Immigration & Anor [2016] FCCA 333 at [14]. In dismissing an appeal from such decision, Farrell J in Khan v Minister for Immigration and Border Protection [2016] FCA 877 at [32] said as follows:
“[32] Mr Khan identified no error in the primary judge’s reasoning as to the meaning of the words referred to in ground one and none is discernible. While the Minister correctly pointed out that the FCCA Judgment at [13] should not be taken as an exhaustive statement of when cl 457.223(4)(d)(ii) will not be satisfied, I accept that it is sufficient in this case. The steps identified in the FCCA Judgement at [14] are appropriate to assist a decision maker to determine whether the position associated with a nominated occupation is “genuine” in the sense of “real or authentic”. The primary judge, at [15]-[16], correctly relied on the approach taken by Judge Smith in Cargo First at [30] in relation to reg 2.72(10)(f), which employs the same words as cl 475.223(4)(d)(ii). That is, it is necessary for a decision maker to determine not only whether a position exists but also whether it is what it purports to be; that requires a “qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor”.”
The Tribunal carried out a quantitative analysis of the proposed occupation by reference to the actual past work of Mr Siderov relied upon by the applicant as justifying the grant of the visa, but found that such work did not fall within the tasks required of the nominated position. It was entitled to so find based upon the evidence before it.
Further, to the extent that the words used in s. 140GB(1)(a)(i) – (iii) inclusive were prospective in character, they merely reflected the fact that the occupation the subject of the nomination was always a “proposed” occupation until such time as the nomination application had been granted. If not granted, a consideration as to whether the words were prospective or not was otiose. Further, the words did not preclude the Tribunal from considering past work practices for the purpose of determining whether the occupation was genuine or not. The Tribunal should not be fettered in its deliberations by being limited to conjecture as to the way in which a proposed occupation might fit into an applicant’s future business structure, particularly in circumstances where the best evidence as to how the occupation sat within the applicant’s overall business structure was best reflected by the manner in which it had actually sat during the period of at least two (2) years when Mr Siderov was said to have fulfilled the role. The Court finds that the construction as propounded on behalf of the applicant was a strained construction of s. 140GB(1)(a)(i) – (iii), which did not reflect what the Court finds was the true intention of the legislature at the time of enactment.
The Tribunal was entitled to find, as it did at [39] of its reasons, that the claims made in the applicant’s Genuine Position Statement had not been confirmed by the oral evidence given by Mr Siderov or Cederman. It was also entitled to find, after a close and detailed analysis of all of the substantial documentary material before it, [4] that the nominee’s purported role within the applicant’s business was greatly exaggerated, the nominee’s role being more indicative of the performance by him of an administrative role in facilitating the carrying out of instructions given to him by employees of the applicant in Bulgaria, rather than his fulfilling the role of a Project Administrator.
[4] See [19] of the reasons of the Tribunal which extensively listed the documentation supplied in support
of the nomination application.
The Tribunal was also entitled to find that there were inconsistencies in oral evidence given to the Tribunal by Mr Cederman and Mr Siderov, and that the claims as set out in the Genuine Position Statement were largely unsubstantiated. In such circumstances, together with the applicant’s failure to discharge its evidentiary onus as to exactly how the business operated at the time of the Tribunal hearing, the Tribunal was entitled to find that the genuineness requirement as set out in r. 2.72(10)(f) of the Regulations had not been met. The Tribunal did not err in the way in which it assessed the evidence before it. It was entitled to look at what had occurred in the past for the purpose of assessing whether the occupation was a genuine ANZSCO occupation or not.
It cannot be said that no other rational or logical decision maker could not have made the 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]:
“[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.”
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.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 21 January 2021
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