FWM18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1126
•1 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FWM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1126
File number: MLG 3397 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 1 November 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal made illogical or unreasonable findings based on unwarranted assumptions – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 476, 477 Cases cited: AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; [2018] FCAFC
BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573
CBY15 v Minister for Immigration and Border Protection [2020] FCA 878
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 26 July 2024 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Mr A White Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr J Barrington Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 3397 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FWM18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
1 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Kenya who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant’s matter was before it for review.
By an amended application the applicant raises a sole ground asserting that the Tribunal decision was affected by jurisdictional error because the Tribunal constructively failed to exercise its review jurisdiction and/or made findings that were illogical, irrational or unreasonable by making assumptions lacking any probative or intelligible basis.
For the reasons explained below, I have found that the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant arrived in Australia in June 2012 as the holder of a provisional partner visa. The applicant’s relationship with his partner subsequently broke down and his sponsorship for a partner visa was withdrawn.
On 4 February 2014 the applicant applied for a protection visa. In his protection visa application, the applicant claimed to fear being forcibly recruited into the Al-Shabaab militia if he were to return to Kenya.
On 27 October 2015 a delegate of the Minister refused to grant the applicant a protection visa.
The applicant applied to the Tribunal for merits review of the delegate’s decision on 24 November 2015.
On 31 July 2018 the applicant appeared at a hearing convened by the Tribunal to give evidence and present arguments in relation to the review.
On 9 October 2018 the Tribunal affirmed the delegate’s decision. The findings made by the Tribunal which are relevant to the consideration of applicant’s ground of application are discussed further below.
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 12 November 2018. The application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant filed an amended application on 27 June 2024 raising the following ground of application:
1.The Tribunal’s decision was affected by jurisdictional error in that it constructively failed to exercise its review jurisdiction and/or made findings that were illogical, irrational or unreasonable by making assumptions lacking any probative or intelligible basis.
Particulars
A.The Tribunal accepted that the Applicant was approached by an Al Shabaab recruiter to join the organisation on a short trip to his home region in Kenya in 2010: [30].
B.The Tribunal reasoned that because the Applicant was not contacted a second time he was of low-level interest to Al Shabaab: [50].
C.The Tribunal’s conclusion in Particular B depended upon two stated assumptions:
i.Al Shabaab would not be put off from obtaining the Applicant’s contact details from the Applicant’s parents: [40];
ii.If the Applicant was of interest to Al Shabaab it would have contacted him again, even once the Applicant was outside Kenya: [50], [51].
D.The assumptions particularised in C were not based in any logic, experience or probative material before the Tribunal.
The evidence before the Court comprises the court book filed by the Minister on 31 August 2020.
CONSIDERATION
Relevant principles
Both parties agreed that it was appropriate to consider the ground as relating to logicality or rationality, taking into account the following observations of Perram J in BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 (BOH17) at [7]:
On the current state of the authorities, it seems to me that the better view is that there is no freestanding ground of unwarranted assumptions. However, the making of unwarranted assumptions as part of a credit finding may be reviewed on rationality grounds (DAO16) or because the decision maker has failed duly to consider the question raised by the material (WAGO and BZD17). For myself, the former test is easier to apply in practice in the sense that it appears less conclusory.
On this approach, the question for the Court is whether an assumption is one which a reasonable decision-maker could make or whether an assumption has an evident and intelligible basis: BOH17 at [8]. It can be unreasonable to make findings underpinned by unexpressed and unwarranted assumptions not based in any evidence: DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 (DAO16) at [45].
As the Full Court said in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45]:
Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]–[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J.
A finding of fact or reasoning which is illogical or irrational, made on the way to reaching a conclusion, may establish jurisdictional error if it is sufficiently critical to the overall conclusion: DAO16 at [30]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [132]. But not every finding or process of reasoning that is found to be illogical or irrational will amount to jurisdictional error. As Kerr J explained in CBY15 v Minister for Immigration and Border Protection [2020] FCA 878 (CBY15) at [91], citing AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; [2018] FCAFC 133:
[E]ven if one or more elements of a tribunal’s reasoning, or a finding of fact upon which that reasoning is based, is shown to be irrational or illogical, jurisdictional error will not be established if:
(a)that reasoning, or the finding of fact, is not critical to the ultimate conclusion or end result; and
(b)the remainder of the decision maker’s reasoning as is unaffected by those flaws remains available to be relied upon as a sufficient foundation for the adverse credit finding.
The applicant relied, in particular, on two judgments of the Federal Court as examples of instances in which making a finding based on an unwarranted assumption may be illogical, irrational or legally unreasonable, amounting to jurisdictional error.
In SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589, Allsop CJ found that a decision of the Tribunal was legally unreasonable based on aspects of the Tribunal’s reasoning process, including that the Tribunal made assumptions that:
(a)if the appellant had been on bail as he had claimed, the authorities would have required him to surrender his passport (and, hence, the Tribunal disbelieved the appellant’s evidence in relation to his departure from China), in circumstances where there was no basis in the country information or other material for that assumption: at [46]; and
(b)it was not credible that the appellant would have been arrested two weeks after a protest, as he had claimed, where there was no foundation in logic, experience or material (including country information) for that assumption to be made: at [48].
In CBY15, Kerr J found jurisdictional error in circumstances where his Honour found that three of the five reasons of the Tribunal for rejecting the first appellant’s credibility were illogical or irrational. One of those reasons related to the Tribunal’s rejection of the first appellant’s claim to have departed China while on bail. His Honour accepted that there was no evidentiary basis on which the Tribunal could have found that it was impossible to leave China while on bail without being apprehended, or which permitted the Tribunal to proceed on the basis that a Chinese citizen who had been dealt with administratively for their association with Falun Gong and who was on probation would be denied exit from that country: at [132] and [134]. His Honour said at [136]:
That is not to suggest that the Tribunal was not entitled to bring any special knowledge it had acquired in that regard to bear on its reasoning. However, in order lawfully to do so the Tribunal would have been required to have identified the basis of that knowledge and given the First Appellant an opportunity to contradict it. It did not do so in this instance. In the absence of any such express reasoning, an inference of the First Appellant’s want of credit for that reason was mere speculation on the Tribunal’s part.
Relevant parts of the applicant’s claims and the Tribunal decision
The applicant claimed that, during a two-week return to Kenya in 2010, he was approached by an Al-Shabaab recruiter who was active in his home area. The applicant personally knew the recruiter as they attended the same local Madrasa. The applicant claimed that he was targeted as a recruit for Al-Shabaab because he has a university education, knowledge of Arabic, he had lived abroad and he had connections in the United Arab Emirates. The applicant claimed that he was asked by the recruiter about accessing financial support for Al-Shabaab. The applicant gave evidence to the Tribunal that he said he would think about it, and did not refuse to join because he was fearful that he or his family would be harmed. He gave evidence that he then went to another area for a few days and subsequently returned to Nairobi briefly.
The applicant claimed to fear that, if he returned to Kenya, he would be forcibly recruited by Al-Shabaab, via abduction or harm, or harmed in retribution for his refusal to join the organisation.
The Tribunal did not accept that the applicant would face a real chance of serious harm or a real risk of significant harm if he were to refuse to join Al-Shabaab.
In reaching this conclusion, the Tribunal said at [39]-[40] of its reasons (emphasis added):
39.I note that the applicant was approached by a school friend, [name redacted]. During this approach no threats were made. It was not followed up by a second meeting despite the applicant returning to his parent’s home in the same suburb. His friend did not seek to contact his family to continue to pursue him after he had left Kenya. The applicant has not heard from him since that one solitary meeting. The applicant did not report the incident to the police.
40.I put to the applicant that if [name redacted] was a school friend as claimed then there would be no reason why he wouldn’t go to the applicant’s parents and ask for his contact details. He responded that [name redacted] would not approach his parents because his parents are older and it was a secret recruitment. The applicant later clarified that in his culture [name redacted] would not approach his parents, but instead his friends. Despite this there are no claims that his friends were contacted. I find this argument lacking credibility. Considering the terrorist activities of Al-Shabaab I do not accept that a recruiter would be put off approaching the parents of the applicant for cultural reasons, especially when [name redacted] could seek contact details while passing off as a friend from their school days.
The Tribunal summarised its factual findings in relation to this claim at [50]-[51] of its reasons, where it said (emphasis added):
50.Overall, I am not swayed by the applicant’s arguments for fearing Al-Shabaab. That he was not approached a second time is indicative of the low level of interest [name redacted] had in his friend, the applicant. If the applicant was as valuable to Al-Shabaab as claimed then his value would continue regardless of whether he was in Kenya or had returned to Dubai after his brief visit. In such a circumstance the applicant would have been contacted. As he hasn’t been it adds to doubts about the level of interest [name redacted] and in turn Al-Shabaab had in the applicant. I note country information on recruitment does not support a view that Al-Shabaab adopt forced recruitment. I also note that the applicant didn’t report the incident to the police, a finding I gave some weight to because of his explanations. He then returned to the same area to stay with his parents for a few nights which I acknowledge is a relatively short period and as such place lesser weight. Nevertheless, overall, I find that the applicant’s actions weigh against his claims of fearing harm and instead that [name redacted] or Al-Shabaab are not interested in the applicant to such a degree as to cause him harm for any reason.
51.What differentiates the applicant circumstances now from before is that he has lived in Australia for eight years. Al-Shabaab may have an interest in accessing Australian funding. While this makes him more valuable I only give it little weight as it remains a fact that he was not pursued after having lived in Dubai. If Al-Shabeeb needed someone to organise fundraising there is no reason why he wouldn’t have been pressured to do so then.
The parties’ submissions about the first alleged unwarranted assumption
The first assumption that the applicant submitted was unwarranted, in the sense that it was not based on any logic, experience or material before the Tribunal, was that Al-Shabaab would have contacted the applicant’s parents to obtain his contact details. This assumption was said to be evident from the finding at [40] of the Tribunal’s reasons, which is extracted at [23] above.
The applicant submitted that there was no logical connection between Al-Shabaab being a terrorist organisation and a finding that it would have the capacity and motivation to get the applicant’s contact details from his parents. The assumption that the Al-Shabaab recruiter would not be put off approaching the applicant’s parents for his contact details was unwarranted, and not founded in any probative material.
The Minister submitted that the Tribunal’s finding must be read in context, including that:
(a)the Al-Shabaab recruiter was a school friend of the applicant; and
(b)the applicant claimed to have been targeted for recruitment to Al-Shabaab’s mid to top tier ranks because he had a university education, knowledge of Arabic, he had lived abroad and he had connections with the United Arab Emirates, and so he had been asked about accessing financial support for Al-Shabaab.
The Minister submitted that it was in that context that the Tribunal considered whether the Al-Shabaab recruiter would have sought to contact the applicant more than once. The Tribunal inclined to the view that he would have and considered that the recruiter would have sought the applicant contact details from his parents. The applicant’s response to this suggestion was that he would not have, because of cultural reasons and that the recruiter would have instead contacted his friends and the Tribunal noted that there was no suggestion that the friends were contacted.
The Minister submitted that the Tribunal’s rejection of the applicant’s claim was logical. There were two aspects to the Tribunal’s reasoning at [40]. The first was to note Al-Shabaab’s terrorist activities and the Minister submitted in relation to this that it was not illogical to infer that due to Al-Shabaab’s previous terrorist activities that they are concerned with breaking a cultural norm. The second was to note that, in any event, the recruiter could have contacted the parents under false pretences, and in relation to this the Minister submitted that, given the recruiter’s prior relationship with the applicant, there was nothing illogical in the Tribunal reasoning that the recruiter could have passed himself off as a friend from school.
In his oral submissions, Counsel for the Minister submitted that it was not a fair reading of the Tribunal’s reasons to suggest that the assumption made by the Tribunal was that Al-Shabaab would have contacted the applicant’s parents. The important finding of the Tribunal was that the applicant was not contacted, and that the recruiter could have, but did not, contact the applicant’s parents. Counsel for the Minister submitted that it was not unreasonable or irrational for the Tribunal to find, in the context of this decision, that the recruiter could have contacted the applicant’s parents.
Counsel for the applicant addressed the Minister’s submission in the immediately preceding paragraph in his reply submissions, and submitted that it must be implicit in the course of reasoning of the Tribunal that the Tribunal made an assumption that Al-Shabaab would have contacted the applicant’s parents. The Tribunal’s finding was that the Al-Shabaab recruiter did not contact the applicant’s parents, which is a fact that, of itself, could not have been probative of the level of interest in the applicant. Counsel for the applicant submitted that the fact only attained probative value at all if it could have some comparison made to the unwarranted assumption articulated by the applicant, namely, that Al-Shabaab would have been expected to contact the applicant’s parents if the applicant was of interest as he claimed.
The parties’ submissions about the second alleged unwarranted assumption
The second assumption that the applicant submitted was unwarranted, again in the sense that it was not based in any logic, experience or material before the Tribunal, was that if the applicant was of interest or value to Al-Shabaab, including as a fundraiser, it would have contacted him even once he had left Kenya to return to Dubai.
The applicant submitted that this perpetuates the error of the first assumption inasmuch as an assumption that Al-Shabaab would contact the applicant outside of Kenya depended on Al-Shabaab somehow obtaining the applicant’s contact details. Additionally, the applicant submitted that there was nothing in the material to support the second assumption that, even if Al-Shabaab did have the applicant’s contact details, it would have contacted him if he was of ongoing value or interest.
The Minister submitted that the second assumption also did not involve illogicality. To the extent that this submission builds on the Tribunal’s earlier finding, it is not illogical for the same reasons.
The parties’ submissions about the assumptions in the context of the Tribunal’s decision as a whole
The Minister further submitted that even if there was illogicality in the Tribunal’s reasoning referred to by the applicant, it does not result in a conclusion that the overall reasoning was illogical. The evident concern for the Tribunal was the fact that the recruiter did not seek to contact the applicant again. The recruiter did not contact the applicant personally while he was in Kenya, or his parents or his friends. It was the absence of a second attempt at contact by any means which caused the Tribunal in part to reject the applicant’s claim.
The Minister also submitted that the Tribunal had additional reasons for concluding that the applicant was not of interest to Al-Shabaab, including country information to the effect that Al-Shabaab did not adopt forced recruitment, that the applicant did not report the incident to the police, and that the applicant returned to the area after the incident. In these circumstances the Tribunal’s ultimate reasoning cannot be characterised as illogical.
In his oral submissions, Counsel for the applicant submitted that the Tribunal relied substantially on the assumptions in finding that the applicant was not of ongoing interest or was of a low-level interest to Al-Shabaab. Counsel for the applicant acknowledged that the Tribunal also considered that the applicant did not report the incident to the police as well as information concerning the recruiting methods of Al-Shabaab in Kenya. However, Counsel for the applicant submitted that, when read in context, the conclusion that the applicant was of low-level interest to Al-Shabaab was really the critical factor in the Tribunal’s reasoning to reject the applicant’s fear or harm insofar as it related to forced recruitment.
Resolution
I am not satisfied that the Tribunal has made any unwarranted assumptions or made findings that were illogical, irrational or legally unreasonable and I accept the Minister’s submissions in relation to this ground.
In assessing the applicant’s ground, context is important. The alleged unwarranted assumptions must be considered in the overall context of the Tribunal’s finding and reasoning in relation to the applicant’s claim to fear forced recruitment or otherwise fear harm by Al-Shabaab. Viewed in their proper context, the two alleged unwarranted assumptions are interrelated.
It is evident from [50] of the Tribunal reasons that the Tribunal found the fact that the applicant was not contacted a second time by Al-Shabaab indicated that he was of low-level interest to Al-Shabaab. Although the applicant has submitted, in the context of the second alleged unwarranted assumption, that there is nothing in the material before the Tribunal to indicate that Al-Shabaab would have contacted the applicant if he was of ongoing interest, I am satisfied that a reasonable and rational decision-maker could find on the evidence before the Tribunal that the failure of Al-Shabaab to approach the applicant a second time indicated that he was only of low-level interest to Al-Shabaab. I do not accept that it is not logical or rational to infer that if an organisation (be it a terrorist group or otherwise) had the level of interest in a person that the applicant claimed that Al-Shabaab had in him, that organisation would have contacted the person more than once.
Both of the alleged unwarranted assumptions relate to the means and motivation of Al-Shabaab to contact the applicant.
As set out above, there is some dispute between the parties as to whether the Tribunal in fact made the first assumption articulated by the applicant, namely, that Al-Shabaab would have contacted the applicant’s parents if he was of interest to them. I accept the Minister’s submission that the relevant key finding of the Tribunal was that Al-Shabaab did not contact the applicant’s parents (or his friends). I acknowledge the applicant’s submission that this finding, of itself, is not probative of the level of Al-Shabaab’s interest in the applicant.
In my view, however, on a fair reading of the Tribunal’s reading, the relevant reasoning and logic of the Tribunal appears to be:
(a)Al-Shabaab had the means and opportunity to contact the applicant on further occasions, either when he returned to Nairobi for a few days (although the Tribunal placed lesser weight on this given the short time), or by seeking his contact details from his parents (or his friends, noting that the applicant suggested that Al-Shabaab would be more likely to contact his friends).
(b)Al-Shabaab did not contact the applicant a second time.
(c)Therefore, the applicant was of only low-level interest to Al-Shabaab.
The Tribunal’s observations at [40] address its views on the applicant’s evidence when the Tribunal put to the applicant that the Al-Shabaab recruiter could have contacted the applicant’s parents to obtain his contact details. The Tribunal put to the applicant its thoughts that Al-Shabaab could contact his parents to contact the applicant if they were as interested in him as the applicant claimed, and considered (and rejected) the applicant’s responses.
I do not consider that it was illogical, irrational or unreasonable for the Tribunal to reason that the Al-Shabaab recruiter could have contacted the applicant’s parents for his contact details, and the fact that he did not indicated that the applicant was of low-level interest to Al-Shabaab. I accept the Minister’s submission that it was reasonable to infer that an organisation that engages in terrorist activities would not be deterred by a social norm or convention from contacting the applicant’s parents for his contact details, especially in circumstances where the recruiter could present himself as an old school friend of the applicant.
I do not consider that there is any unwarranted assumption in the Tribunal’s finding at [40] that would amount to illogicality, irrationality or legal unreasonableness.
There are two relevant aspects of the second alleged unwarranted assumption. First, the applicant submitted that this follows from the first alleged unwarranted assumption, in that it is based on an assumption that Al-Shabaab would have the means to contact the applicant. Given the way that I have interpreted the Tribunal’s reasoning above, it follows that I find it was not unreasonable for the Tribunal to infer that Al-Shabaab had the means to contact the applicant overseas if he was of interest to them.
The second aspect of the claimed unwarranted assumption is that Al-Shabaab would be motivated to contact him outside of Kenya. Again, context is important. The applicant claimed that he was a high value potential recruit in part because of his foreign connections, particularly with the United Arab Emirates. It is implicit in the applicant’s claims that Al-Shabaab would view him as valuable even if he lived outside of Kenya. In these circumstances, there was nothing illogical, irrational or unreasonable in any assumption on the part of the Tribunal that Al-Shabaab would have contacted the applicant outside of Kenya if he was as valuable to that organisation as he claimed.
In circumstances where I have found that the Tribunal did not make any assumptions that were illogical, irrational or unreasonable, it is not necessary to address whether any unwarranted assumptions led to illogicality, irrationality or unreasonable in the overall conclusion the Tribunal reached in relation to the applicant’s claims based on fears from forced recruitment by Al-Shabaab.
CONCLUSION
As I have found that the applicant has not established that the Tribunal made a jurisdictional error, the application for judicial review is dismissed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 1 November 2024
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