GEY18 v Minister for Immigration
[2019] FCCA 2933
•10 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GEY18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2933 |
| Catchwords: MIGRATION – Application for safe haven enterprise visa – inconsistencies in applicant’s claims – adverse credibility findings – country information – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.5H, 5J, 36(2)(a), 36(2)(aa), 46A, 473CA, 473CB, 473DD. |
| Cases cited: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10. |
| Applicant: | GEY18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 638 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 10 October 2019 |
| Date of Last Submission: | 10 October 2019 |
| Delivered at: | Perth |
| Delivered on: | 10 October 2019 |
REPRESENTATION
| Solicitor for the Applicant: | Mr N. Draper of D’Angelo Legal |
| Solicitor for the First Respondent: | Ms A. Ladhams of AGS |
ORDERS
The amended application for review filed on 26 February 2019 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
No. PEG 638 of 2018
| GEY18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Iran. He is a Sunni Kurd. On 6 July 2013, the applicant arrived in Australia as an unauthorised maritime arrival. On 27 July 2016, the applicant was advised that the Minister had lifted the bar pursuant to the provisions of s. 46A of the Migration Act 1958 (Cth) (the Act) so as to allow the applicant to make an application for a protection visa.
On 27 March 2017, the applicant applied to the Department for a Safe Haven Enterprise Visa (SHEV). On 8 November 2017, the applicant attended at the Department for the purpose of the conduct of an interview in relation to the SHEV application. On 9 August 2018, a delegate of the Minister refused to grant the SHEV to the applicant. The matter was subsequently referred to the Immigration Assessment Authority (the Authority) for review pursuant to the provisions of s. 473CA of the Act.
On 5 October 2018, the applicant’s representative provided the Authority with a statement of the applicant, together with other documentation, which included media articles and screenshots from Facebook and Instagram.
On 21 November 2018, the Authority affirmed the decision of the delegate not to grant the applicant the visa.
On 28 November 2018, the applicant filed an application for review of the decision of the Authority. On 26 February 2019, the applicant, through his lawyers, filed an amended application for review, the grounds of which are as follows:
Grounds of Application
1. The Authority made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well-founded fear of persecution or will suffer significant harm on return to his home country.
Particulars
(a) the Authority unreasonably concluded that the Applicant, a Sunni Muslim of Kurdish ethnicity from Kurdistan, Iran, does not face a real chance of persecution or suffer significant harm if he is turned to Iran;
(b) The Authority misdirected itself and unreasonable concluded that the Applicant, a Sunni Muslim of Kurdish ethnicity from Kurdistan, Iran, does not face a real chance of persecution or will suffer significant harm if he is returned to Iran in reliance on and with reference to unreliable country information and failed to pay careful regard to the Applicant’s personal circumstances.
At [12] of the reasons of the Authority, the applicant’s claims for protection were recorded as follows:
·He is a Sunni Kurd from Kurdistan, and he was persecuted in Iran because of his ethnicity and his religion. Once when he visited Tehran, the police told him to leave because he was a Kurd from Kurdistan.
·He had to say he was Shia in order to get government documents such as a business license and military exemption card.
·He owned a restaurant and he was not allowed to play music of his choosing there. He had to close his restaurant, while he was still paying high rent, for religious ceremonies and revolution ceremonies.
·In 2012, he was picked on by a traffic policeman - his motorbike was suspended and he was penalised for not having a lock on it - because he is Kurdish.
·At the end of 2012, he kept his restaurant open during a religious holiday. The government told him to close it and when he refused and insulted the religious holiday, government officials smashed up his restaurant and took his business license so he could no longer operate. He was subsequently told by a relative who worked for the Ettela’at to flee Iran to save his life because a security order was about to be issued against him for insulting a religious figure.
·While he has been in Australia he has been involved with some groups who fight for democracy in Iran. He has attended various demonstrations to supports Iran’s independence from the clergy regime and posted content in that vein on social media from time to time.
·If he returns to Iran, it will be as a failed asylum seeker from a Western Country.
At [3] of its reasons, it was recorded by the Authority that it had had regard to the material provided to it by the secretary of the Department pursuant to the provisions of s. 473CB of the Act. On 5 October 2018, the applicant’s representative provided further documents to the Authority in support of the applicant’s claims. [1]
[1] [4] of Authority’s reasons.
At [5]-[10] inclusive of its reasons, the Authority closely analysed the contents of the statutory declaration provided to it by the applicant as well as media articles. The Authority noted that the material provided to it could have been provided to the delegate. Otherwise, the Authority noted that it was in possession of other information considered more reliable and recent to that provided to it by the applicant. In those circumstances, the Authority did not consider that there were exceptional circumstances justifying it considering such new information, pursuant to the provisions of s. 473DD of the Act. In those circumstances, the Authority also noted that it would not consider the new material.
At [11] of its reasons, the Authority referred to the contents of social media posts which had been provided to it by the applicant. It found that exceptional circumstances did exist justifying its consideration by the Authority. It also found that the information was credible personal information, which was not previously known, and found that had it been known, it may have affected the delegate’s consideration of the applicant’s claims. It found that the information fell within the provisions of s. 473DD of the Act, and noted that it had considered such information.
At the outset of the hearing today, the applicant, by his lawyer, Mr Draper, abandoned paragraphs 17-25 inclusive of the submissions filed on behalf of the applicant insofar as those paragraphs constituted submissions concerning the previously alleged unreliability of information relating to the safety and suitability of the place of relocation of the applicant. The Court accordingly does not have regard to such submissions.
At [14] of the reasons of the Authority, it was recorded that the applicant claimed that in Iran, he was persecuted because he was a Sunni Kurd, saying that it was difficult for him to obtain government documents, thereby requiring him to say that he was a Shia Muslim in order to get a military exemption card and a business licence. It was also noted that the applicant had said that when he visited Tehran, he was told to leave by a police officer because he was from Kurdistan and, further, that he could not play the kind of music he wanted to in his restaurant (though the applicant did not particularise what sort of music it was that he intended to play, or why the authorities objected to it). It was also noted by the Authority that the applicant had claimed that the police had once harassed him on his motorbike and that the police were always pulling cars over, saying that the authorities picked on people for trivial things.
At paragraphs 15, 16, 17, 18, 26, 36, 39 and 40 of its reasons, the Authority had had regard to country information, not only that provided by DFAT, but also from the US Department of State. The Authority analysed that country information in the context of the personal history and claims which had been made on behalf of the applicant, as set out in [5] – [11] inclusive of the reasons of the Authority, together with the claims and evidence as set out in [18] – [26] inclusive of its reasons.
The Authority had regard to claims made by the applicant that he was “picked on” by traffic policemen, and that he was otherwise discriminated against and persecuted by reason of his religion and ethnicity. In that regard, Mr Draper took the Court to paragraph 2 of the written submissions filed on behalf of the applicant, wherein, in subparagraphs (a) – (f) inclusive thereof, reference was made to the nature and extent to which persecution by reason of religion and ethnicity in respect of Sunni Kurds occurred in Iran.
Having considered all of the claims made on behalf of the applicant in relation to persecution which he alleged would give rise to serious harm should he be returned to Iran, the Authority made relevant findings as follows:
a)The Authority found it plausible, based on country information, that the applicant had suffered some discrimination and low level harassment as a Sunni Kurd prior to his departure from Iran. It did not find, however, that the applicant had been required to say that he was a Shia Muslim in order to get documents so as to enable him to operate a business ([17] of reasons).
b)The Authority found that the applicant had not mentioned at the time of his entry interview or in his SHEV interview that his restaurant had been smashed up and that his life was in danger due to what was alleged to be the pending issue of a security order. It was found by the Authority that the lack of a satisfactory explanation for his failure to have mentioned those things was a factor that undermined his credibility ([20 – 21] of reasons). A decision-maker is entitled to look at the time or times when claims were first made for the purpose of assessing a person’s credibility. [2]
c)The Authority was not satisfied that the applicant had insulted a religious figure or sworn at Iranian authorities as claimed by him, nor that the authorities had smashed up his restaurant ([23] – [24]).
d)The Authority found that, had the relevant Authority considered the applicant’s behaviour serious enough to warrant the issue of a security order (which would have involved subsequent serious punishment, including possible execution) such Authority could have arrested the applicant at any time in the six months between the alleged incident at the restaurant and his departure from Iran. The applicant was found to have conceded that he was never detained nor arrested. The Authority found that no such security order was pending. It also found that the applicant was of no interest to the Iranian authorities at the time he left Iran, nor that he was in danger of physical harm, imprisonment or execution prior to that time ([27] – [29] inclusive of reasons).
e)The Authority found that there was no evidence before it to suggest that the Iranian authorities were aware of the applicant’s political activities. The applicant conceded that he had not engaged in political activity in Iran, nor that he had claimed to have had any interest in politics whilst in Iran. The Authority noted that the applicant did not involve himself in any political activity until three years after he had arrived in Australia.
f)In that regard, the Authority noted that it was only after the delegate had rejected the applicant’s visa application on 8 August 2018, that the applicant had posted any political content to Facebook or Instagram, that being in late September 2018. It also noted that, on 5 October 2018, the applicant had submitted to the Authority that his social media activity was a reason why his application for the visa should be accepted. That activity was at a time prior to the handing down of the Authority’s decision. The Authority found, in that regard, that the applicant’s postings had been contrived for the purpose of enhancing his visa application consideration.
g)The Authority further found that it was not satisfied that the applicant had any real interest in openly criticising the Iranian regime or agitating for Kurdish rights in the reasonably foreseeable future if he was returned to Iran. It found that the reason he would not do so was not because he had a fear of persecution. [36]-[37] of reasons.
h)The Authority found that based upon country information, the Iranian authorities paid little attention to failed asylum seekers on their return to Iran, and that the applicant’s social media posts were likely not known to the Iranian authorities. There was no real chance that the applicant would be harmed in Iran for having applied for asylum in Australia. [40 of reasons].
[2] CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [22]-[24] per
The Authority carefully engaged with the claims of the applicant relating to persecution of the applicant should he return to Iran. It noted that Sunni Kurds, though constituting approximately 10 per cent of the Iranian population, nevertheless faced considerable societal discrimination leading to unfair day-to-day treatment. It was noted by the Authority, however, that most Iranian Kurds did not come to the attention of authorities, or were subject to only low levels of adverse attention by the state. The Authority noted that that remained the case according to the most recent DFAT reports – the report relied upon by the Authority in that regard was the DFAT country information report – Iran – June 2018. [3]
[3] Department of Foreign Affairs and Trade, “DFAT Country Information Report Iran”, June 2018,
CIS7B839411226. Footnote No. 3 at CB 216.
The Authority also noted that country information suggested that Kurds had reduced access to business licences, and it was accepted that the applicant was subject to discrimination and low level harassment whilst in Iran. The Authority noted inconsistencies in certain claims of the applicant, particularly in relation to the alleged death of a neighbour [18 of reasons].
At [26] of its reasons, the Authority relied upon country information when finding that Iranian authorities would not execute a person without a political or public profile on a national security charge for one instance only of disrespecting a religious leader. Having engaged in a considered manner on the issue of whether the applicant would suffer persecution for his having allegedly disrespected Islam and otherwise being abusive, the Authority was entitled to find that the applicant would not suffer execution if he had in fact done so. It was also entitled to reject the assertions of the applicant to the effect that six months after he had arrived in Australia, the authorities had visited his parents and threatened them. The Authority noted that the claims were inconsistent, stating that had the authorities been so inclined, they could have arrested and detained the applicant for his alleged indiscretions well before the applicant had left Iran.
The Authority considered the limited nature of the applicant’s political activity in Australia when finding that the applicant did not have such a political profile, either at the time he left Iran or subsequently, so as to give rise to a well-founded fear of persecution should he be returned to Iran. It was noted at [36] and [37] of its reasons by the Authority that the applicant did not relevantly engage in any political activity in Australia until three years after his arrival. It was also noted that the applicant had not claimed that he intended to continue to engage in any political activity should he be returned to Iran.
At [50] of its reasons, the Authority addressed the applicant’s claim that he would suffer persecution should he be returned to Iran by reason of his being a failed asylum seeker in a western country. The Authority referred to country information (the DFAT June 2018 report) which indicated that Iranian authorities paid little attention to failed asylum seekers on their return to Iran, and further, that Iranian authorities had little interest in prosecuting returning failed asylum seekers for activities conducted outside Iran, including applying for asylum and posting social media comments critical of the government.
It was noted that government authorities would only question a returnee if they had already come to the official attention of the authorities such as by committing a crime before they left Iran, or by reason of them having a substantial political profile. The Authority noted that country information recorded that a person would not be detained merely by reason of their ethnicity, or for being a Sunni Muslim.
The Authority was not satisfied that there was a real chance that the applicant would be harmed in Iran because of his religion or ethnicity, or for any other reason based upon the applicant’s activities in Australia. Having cumulatively considered the applicant’s claims in the context of country information, the Authority was not satisfied that the applicant had a real chance of being seriously harmed in Iran in the reasonably foreseeable future should he be returned there. It found that the applicant relevantly did not meet the s. 36(2)(a) criteria.
At [43] – [47] inclusive of its reasons, the Authority set out the relevant complementary protection criteria. It found that though the applicant as a Sunni Kurd may face some discrimination, such as not being able to play his choice in music in public, as well as low level harassment by the authorities, it was not satisfied that there was any more than a remote possibility that the applicant would be subject to adverse treatment beyond that. It was not satisfied that there was a real risk that the applicant would suffer harm that would amount to significant harm within the meaning of the Act by reason of his ethnicity and/or religion. It found that the applicant did not meet the relevant section 36(2)(aa) complementary protection criteria.
When considering country information, an Authority such as the Immigration Assessment Authority cannot be criticised for weighing up the information before it, and coming to a reasonable conclusion, as it did here, by relying upon that country information which it found most appropriate. Jurisdictional error is not demonstrated by an Authority favouring one set of country information over another. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Gray, Tamberlin and Lander JJ said as follows at [10] - [11]:
“[10] In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.
[11] The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
In SZUEP v Minister for Immigration and Border Protection [2017] FCAFC 94 at [27], the Full Court of the Federal Court there said:
“[27] To say that some of the matters on which the tribunal made the findings were “taken out of context” shows no more than that the applicants disagree with the evaluation of the country information made by the tribunal. However, subject to principles of legal unreasonableness, the weight to be given to country information is a matter for the tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].”
The Authority was considered and careful in its analysis of the applicant’s personal circumstances. The Authority engaged with all of the claims made on behalf of the applicant and dealt with them in its reasons. It acknowledged that a Sunni Kurd would suffer discrimination in Iran, and that if the applicant was returned to Iran, he would, by reason of his religion and ethnicity, suffer that discrimination. That, however, does not necessarily give rise to refugee obligations on the part of the Minister.
It is important to note the provisions of s. 5H and 5J of the Act in that regard. For a person to have a well-founded fear of persecution for the purposes of s. 5J of the Act, as specifically provided for in 5J(4)(b) of the Act, any persecution, inter alia, “must involve serious harm to the person”. It is not enough for an applicant to just establish that a person will be persecuted if returned to their country of origin. Sections 5H and 5J of the Act relevantly provide as follows:
5H Meaning of Refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well‑founded fear of persecution, see section 5J.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non‑political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
5J Meaning of well‑founded fear of persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3) A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
It cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] 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.”
…
[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.
The Authority, when analysing the matters of relevance before it, was not demonstrated to have failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] – [27] inclusive where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
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.”
The applicant has failed to established jurisdictional error on the part of the Authority.
The application for review is without merit and is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Egan.
Associate:
Date: 17 October 2019
Thawley J.
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