FBC18 v Minister for Home Affairs - [2020] FCCA 334

FEDERAL CIRCUIT COURT OF AUSTRALIA

FBC18 v MINISTER FOR HOME AFFAIRS & ANOR

[2020] FCCA 334

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Grant or refusal of visas – Credibility findings.

CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Protection visa decisions – Fast track review process – Reviewable decisions – assessment of credibility.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 36(2)(a), 36(2)(aa), 473CA

Cases cited:

AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227

BAO18 v Minister for Home Affairs [2019] FCA 965

BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448

CTM16 v Minister for Immigration and Border Protection [2018] FCCA 2865

DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641

Applicant:

FBC18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 998 of 2018

Judgment of:

Judge Jarrett

Hearing date:

8 November 2019

Date of Last Submission:

6 December 2019

Delivered at:

Brisbane

Delivered on:

28 April 2020

REPRESENTATION

Counsel for the Applicant:

Ms Hoiberg

Solicitors for the Applicant:

Refugee And Immigration Legal Service

Counsel for the First Respondent:

Mr McLaren

Solicitors for the First Respondent:

Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

The amended application filed on 12 April, 2019 be dismissed.
The applicant pay the respondent’s costs of and incidental to this application fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 998 of 2018

FBC18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant is a national of Afghanistan. He arrived in Australia as an unauthorised maritime arrival for the purposes of the Migration Act 1958 (Cth) on 25 April, 2013. On 2 November, 2016 he lodged an application for a Safe Haven Enterprise (Subclass 790) visa. To obtain that visa, the applicant needed to establish (among other things) that at the time of the decision he met the refugee or complementary protection criteria in ss.36(2)(a) or 36(2)(aa) of the Act.
On 7 December, 2017 a delegate of the first respondent refused the visa. Because the delegate’s decision was a fast track reviewable decision it was referred to the second respondent for review in accordance with s.473CA of the Act.
On 4 September, 2018 the second respondent affirmed the delegate’s decision.
On 28 September, 2018 the applicant applied to this Court for orders quashing the second respondent’s decision and an order requiring the second respondent to re-determine the application according to law.
By his amended application filed on 12 April, 2019 the applicant pleads one ground of review in three parts. His written submissions filed on 15 October, 2019 confirm that the third of those parts is not pressed. It was expressly abandoned in the course of the submissions made by the applicant’s counsel. The ground of his application is that the Authority’s decision was unreasonable, irrational and illogical in that the Authority:
a)made findings of credit on objectively minor matters of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 334
Decision Date: 28 April 2020

CaseChat Overview and Summary

The applicant, FBC18, sought judicial review of a decision made by the Minister for Home Affairs concerning a protection visa. The core of the dispute revolved around the assessment of the applicant's credibility by the decision-maker.

The court was required to determine whether the Minister's adverse credibility findings constituted jurisdictional error. Specifically, the court had to consider whether these findings were legally unreasonable, lacked a logical or rational basis, or were based on a false factual premise, thereby tainting the decision-making process.

In its reasoning, the court applied principles established in *DAO16 v Minister for Immigration and Border Protection* and *AVQ15 v Minister for Immigration and Border Protection*. These principles clarify that while credibility findings are primarily for the administrative decision-maker, they are not immune from judicial scrutiny. Jurisdictional error may arise if such findings are illogical, irrational, or lack probative value. The court emphasised that a high degree of caution is necessary to avoid impermissibly engaging in merits review, requiring a demonstration of "extreme" illogicality rather than mere disagreement with the decision-maker's reasoning. The court noted that an adverse credibility finding that is critical to the ultimate decision can lead to a finding of jurisdictional error if it is found to be irrational or illogical.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Before proceeding to a consideration of the remaining two grounds, I record that the parties are agreed that the relevant principles to be applied in this application are to be found in DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641 and AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227. In the former case, the Full Court said, at [30]:30. The relevant principles can be summarised as follows.(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:135. … 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.(Emphasis added)(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…(citations omitted)(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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