GTQ18 v Minister for Immigration
[2019] FCCA 3407
•28 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GTQ18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3407 |
| Catchwords: MIGRATION – Application for Safe Haven Enterprise Visa – inconsistencies and implausibility in claims made by the applicant – country information relevant concerning claims of discrimination – no jurisdictional error established – application for review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 5J, 36(2)(a), 36(2)(aa), 473CB. |
| Cases cited: Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2001) 74 ALJR 405. |
| Applicant: | GTQ18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 1322 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 31 October 2019 |
| Date of Last Submission: | 31 October 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 28 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Burrow |
| Solicitors for the Applicant: | ARC Migration |
| Counsel for the Respondents: | Mr A. Psaltis |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The Amended Application for Review filed on 28 August 2019 be dismissed.
The Applicant is to 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 BRISBANE |
BRG 1322 of 2018
| GTQ18 |
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 Shia Muslim of Kurdish ethnicity.
The applicant arrived at Christmas Island in Australia as an irregular maritime arrival in June 2013. He participated in an arrival interview on 13 July 2013.
On 19 July 2016 the applicant was invited to apply for a Safe Haven Enterprise Visa (SHEV).
On 18 August 2017 the applicant lodged an application for a SHEV. On 19 September 2018 the Department invited the applicant to attend an interview related to his SHEV application. On 15 October 2018 the applicant attended the SHEV interview with the assistance of an interpreter.
On 1 November 2018 a delegate of the Minister refused the applicant’s application for the SHEV. The matter was referred to the Immigration Assessment Authority (the Authority) for review.
On 7 November 2018 the Authority notified the applicant as to the referral, and on 14 November 2018 the applicant asked the Authority to provide him with copies of his entry interview and protection interview records.
On 27 November 2018 the applicant emailed submissions and supporting material to the Authority.
On 12 December 2018 the Authority affirmed the delegate’s decision to refuse the application for the SHEV.
By an amended application filed on 28 August 2019, the Grounds for Review were as follows:
“Grounds of Application
The IAA erred in that it made a decision that was irrational and illogical and that no decision maker could have made in that:
1. Its findings of adverse credibility was unsustainable in the circumstances at 16 of the decision;
2. Its finding that the Applicant was not discriminated as a Kurd on his evidence and on country evidence was unsustainable;
3. …
4. It was unsupported and baseless to discount information within the knowledge of the Department about the return of an asylum seeker and knowledge that returnees are questioned specifically that the Applicant’s housemate had been returned at 44;
5. Its findings that the Applicant does not have an open court file is unsupported on the evidence at 50;
6. …
7. The decision maker reached a conclusion that was in all the circumstances unsupported on the evidence in that the Applicant was a person who was at risk of harm should he be returned to Iran and who would be discriminated against on the basis of being a Shia Muslim and of Kurdish Ethnicity.”
At [3] of its reasons, the Authority noted that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (the Act).
The applicant’s claims were set out at [9] of the reasons of the Authority as follows:
·“He is a Shia Muslim and is of Kurdish ethnicity.
·He holds a Bachelor's Degree in English Language and Literature, conferred on him by the Karaj Branch of The Islamic Azad University on 10 March 2012.
·He rented his own apartment in Tehran for nine years prior to fleeing the country.
·He faces discrimination in Iran because of his Kurdish ethnicity.
·He is opposed to the Iranian government. He participated in anti-government demonstrations at his university in June 2009 following the Presidential election and was warned by university security staff that he would be expelled and referred to the authorities if he continued to participate in these activities.
·He originally desisted from participating in demonstrations before attending the Ashura protests in the streets of Tehran in December 2009 and in early 2010 where he witnessed violence against protestors at the hands of authorities and he was affected by tear gas.
·He was arrested on 25 May 2013 on the charge of 'propaganda against the state' after an altercation with a plain-clothed police officer at a train station which included the applicant making statements against the government. The police found pepper spray in his bag at the time of his arrest and seized his mobile phone which they found contained anti-government videos and photographs. The police also searched his home where they found CDs with speeches which included anti-government sentiment and satellite dishes. The applicant was held for three days, but not physically harmed, and when he was interrogated, the police told him they found guns at his home which he believed to be a false accusation designed to scare him. They demanded details of other people involved in the 2009/2010 protests from him which he did not give. The applicant was then given bail but was not provided with a future court date. The court file is still open and it prevented his brother from obtaining employment with the public prosecutions office.
·He worked as a sales representative selling money counting equipment from July 2002 until he fled Iran in 2013. After being bailed following his arrest in late May 2013, he decided to flee the country because he was in fear of imprisonment or lashings. He was able to earn the equivalent of $6500 USD in a two week period by selling all of the money counting machines he had at a lower price than usual which he used to pay the smuggler to travel to Australia in June 2013.
·A person he shared a house with in Australia returned to Iran in 2014 or 2015 and the applicant told this person about his history of participating in anti-government demonstrations. This person was questioned for two hours on his return to Iran and may have told authorities about the applicant's involvement in these demonstrations during this interrogation.
·The situation facing Kurdish people in Iran has worsened since he fled the country in 2013. He may be considered a failed asylum seeker from a western country if he were to return to Iran.”
At [11] of its reasons, it was noted by the Authority that 90% of Iranians are Shia Muslims. It was accepted by the Authority that the applicant was of Kurdish ethnicity.
At [12] – [15] inclusive of its reasons, after having set out the various timeframes for the holding of an entry interview, the holding of a protection visa interview, and the preparation of a visa application, the Authority did not accept that:
a)the applicant was not made aware that the information provided at the arrival interview would be used as part of the assessment of his claims for protection.
b)the applicant was operating under a short timeframe for the preparation of his application for a protection visa in Australia.
c)the applicant was prevented from, or limited in his ability to, properly prepare his SHEV application in a way that prevented the provision of incorrect or inconsistent information.
At [17] – [21] inclusive of its reasons, the Authority dealt with inconsistencies in relation to the applicant’s evidence as to where he lived prior to leaving Iran. Though the applicant had at one point stated that his father, mother and four siblings lived in Khouzestan, when asked to provide telephone details for an emergency contact, the applicant provided his father’s name and the mobile number which the applicant had previously provided for the person said to be living at an address living in Tehran. It was also pointed out that whereas in his arrival interview the applicant has said that he was living with family and friends in Tehran, at his SHEV interview the applicant had said that he lived alone at the property in Tehran. The Authority did not accept that the applicant lived alone in the Tehran property given his unambiguous reference to the Tehran property as being his home.
As to the applicant’s claims that he was discriminated against because he was a Kurd, as noted at [22] – [27] of the reasons of the Authority, the Authority at [30] of its reasons found that the applicant did not experience discrimination whilst living in Iran due to his Kurdish ethnicity. The Authority noted that the applicant was able to attend school and later obtain a university degree, maintain employment and obtain a passport. It was also noted that the applicant’s siblings were similarly so able to access employment and study opportunities. The Authority also did not find that the applicant’s father had lost his job because of his Kurdish ethnicity, or for any other reason.
As to the applicant’s claims that he had attended anti-government demonstrations at his university in June 2009, and other demonstrations in December 2009 and early 2010, as set out at [31] – [39] inclusive of the reasons of the Authority, the Authority at [40] of its reasons accepted that the applicant had attended a university demonstration after the June 2009 presidential election, and it also accepted that the applicant was in the vicinity of another protest in Iran in early 2010, albeit that it did not accept that the applicant participated in such demonstration.
At [41] of its reasons, the Authority found that the applicant was not a member of a political group, noting that apart from chanting slogans at a protest at his university, the applicant had done nothing more than be physically present at the June and December 2009 protests. It was relevantly noted that the applicant had not attended any further demonstrations between early 2010 and June 2013 when he had left Iran.
At [42] – [44] of its reasons, the Authority dealt with the applicant’s claims that a person who he shared a house with in Australia who had returned to Iran in 2014 or 2015, and who the applicant said knew about his participation in the anti-government demonstrations earlier referred to, had been questioned for two hours on his return to Iran, and may have told the relevant authority about the applicant’s involvement in such demonstrations. The Authority noted that such information was not included in the applicant’s SHEV application despite his having made direct mention in such document about friends who had been detained for questioning upon their return to Iran, and further despite the fact that such newly claimed events had pre-dated the making of that SHEV application by a substantial period of time. At [44] of its reasons, the Authority did not accept that the alleged housemate had in fact returned to Iran in 2014 or 2015 and told the Authorities about the applicant’s involvement in earlier demonstrations.
At [45] of its reasons, the Authority dealt with the applicant’s claim that he had been arrested on 25 May 2013 and held for three days, his claiming further that he had been charged with “propaganda against the State” in respect of which a court file was still open. The applicant was noted as having provided no documentation in support of that claim.
At [46] of its reasons, the Authority noted the applicant’s claims that when arrested on 25 May 2013, he had been interrogated by police who he claimed demanded details of others who had been involved in the protests of 2009/2010.
At [47] – [49] inclusive of its reasons, the Authority recorded the applicant’s claims that because of his alleged past protest involvement he was known to the authorities, and that his brother had been discriminated against because of the applicant’s past actions. It was also noted that the applicant claimed that he had left Iran in May 2013 after his release from arrest.
At [50] of its reasons, the Authority rejected the applicant’s claims that he had an open court file, or that he had been arrested and charged with having been party to having circulated propaganda against the State in May 2013 which caused him to leave Iran. The Authority’s reasons for so finding were as follows: [1]
·“The applicant has not produced any evidence or documentation in support of his claim of being arrested, charged with 'propaganda against the state' or bailed by the Iranian Revolutionary Court.
·In his SHEV application, the applicant ticked `no' in response to the question of whether he has been charged with any offence that is currently awaiting legal action.
·It is implausible that the applicant would mistake a police booth for one used to recharge a transport card.
·It is highly improbable that in May 2013 police, who at that time had no specific knowledge of the applicant's presence at two demonstrations in 2009 and being in the vicinity of one in early 2010 and were only alleged to have found some footage downloaded off the internet, would specifically ask him to give evidence about the involvement of other people in these specific demonstrations.
·It is unlikely that the process his brother allegedly participated in to obtain a position with the public prosecutions office involved an original interview in 2013, following the applicant being released on bail, with a second interview not taking place until 2015.
·The applicant did not experience any issues with authorities at the airport when he left Iran, despite being a person on bail for a charge where the applicant asserts he faces imprisonment or lashings as a punishment.”
[1] Court Book (CB) page 17 at [50] of Authority’s reasons.
At [51] of its reasons, the Authority did not accept that the applicant’s presence at any demonstration had come to the attention of the authorities prior to his leaving Iran. It was noted by the Authority that the applicant had continued to reside in the country for three years after such demonstrations prior to his having allegedly been detained for questioning. It was also noted that the applicant had been able to complete his university studies and continue with work during that time. There was no evidence that he or members of his family had been subjected to any adverse action from the authorities during such post-demonstration period. The applicant had been able to obtain a passport during that time and had left the country lawfully.
At [56] of its reasons, the Authority accepted that if the applicant was to return to Iran he would need to use temporary travel documents for entry because his passport had been lost in Indonesia en route to Australia, and that such may lead authorities to conclude that he was a returnee asylum seeker.
At [57] and [58] of its reasons, the Authority set out the relevant criteria for refugee assessment and the requirements for a well-founded fear of persecution as respectively provided for pursuant to the provisions of s. 5H(1) and s. 5J of the Act.
At [59] of its reasons, the Authority found that though the applicant had been involved in a low-level capacity in some demonstrations in 2009, his involvement was not such as to bring him to the adverse attention of the government, or was such to cause him to be classified as having a political profile in Iran. The Authority relied on DFAT country information compiled in 2016 in finding that the government of the day in Iran could be criticised robustly in a public context, as well as online, provided citizens remain respectful of the supreme leader, the constitutional and territorial foundations of the Islamic republic, and of the place of Shia Islam. It was noted that the applicant was not a member of a political group, did not promote his political views or attend any protests after 2009, and that he had not been politically active or vocal in Australia. The Authority was not satisfied that the applicant had any interest in publicly asserting his views in a way which might result in him coming to the attention of the authorities. For those reasons, it was found that the applicant did not face a real chance of any harm being suffered by him if he was returned to Iran.
Though the Authority acknowledged, at [60] of its reasons, that people of Kurdish ethnicity were subject to discrimination, the Authority noted that such was not the case with the applicant, who had ready access to education, employment and housing. The Authority did not accept that the applicant had been the subject of discrimination by the authorities by reason of his Kurdish ethnicity, nor did it accept that the applicant had a political profile. It did not accept that the applicant faced a real chance of suffering any harm on the basis of his ethnicity if he was to return to Iran.
At [61] of its reasons, the Authority found that country information did not support the applicant’s claims that he would be perceived as being opposed to the Iranian regime by reason of his having spent time in Australia.
At [60] and [61] of its reasons, the Authority relied on DFAT country information reports of 2018 which recorded that Iranian authorities paid little attention to failed asylum seekers upon their return to Iran, and that such people were not prosecuted in such circumstances. It was also noted that voluntary returnees were only questioned if they had come to the attention of the authorities, and that that was not the case with the applicant.
At [68] of its reasons, the Authority found that the Applicant did not meet the definition of ‘refugee’ in s. 5H(1) of the Act, and that, therefore, the applicant did not satisfy the relevant s. 36(2)(a) criteria.
At [72] of its reasons, the Authority found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Iran, that there was a real risk that the applicant would suffer significant harm. The Authority found that the applicant did not satisfy the relevant complementary protection criteria as set out in s. 36(2)(aa) of the Act.
As to Ground 1 of the Amended Application for Review, it was asserted that adverse credibility findings made by the Authority against the applicant were unsustainable. It is clear, however, that the Authority undertook a thorough and careful examination of all of the claims made by the applicant. It assessed such claims, and the evidence submitted on behalf of the applicant, and found that there were a substantial number of inconsistencies in the applicant’s evidence. It also pointed to implausible aspects of that evidence. In such circumstances, the Authority was entitled to make the adverse credibility findings which it did. As was said by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2001) 74 ALJR 405 at [67]:
“[67] In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim — a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.” As to Ground 2 of the Amended Application for Review, it was asserted that the finding that the applicant had not been discriminated against as a Kurd was unsustainable. However, the Authority carefully considered the applicant’s claims of such discrimination and pointed to the fact that neither the applicant nor members of his family had been discriminated against, citing that the applicant had attended school, obtained jobs and had had a university degree conferred upon him notwithstanding that he was a Kurd. The Authority similarly pointed to the lack of discrimination involving members of the applicant’s family in similar respects. It did so in circumstances where it was noted that even though the applicant was a Kurd, he was also a Shia Muslim in circumstances where Shia Islam was the predominant religion in Iran. The Authority had regard to all relevant factors concerning this claim, and appropriately arrived at its decision after having done so. There is no merit to such claim.”
Ground 3 of the Amended Application for Review was not argued at the hearing.
As to Ground 4 of the Amended Application for Review, it was claimed that certain information within the knowledge of the Department about the return of asylum seekers to Iran, and knowledge that such returnees were questioned upon return – in the context of the alleged return of the applicant’s housemate – should have been elevated and accepted by the Authority rather than being discounted. As to that claim, at [42] – [43] of its reasons the Authority dealt at length with the applicant’s said claims, but did not accept such claims because the applicant had failed at an earlier time to raise such issues in circumstances where it would have been expected that such claims would have been raised if they were true. It was not illogical or irrational for the Authority to have made the findings that it did on this issue in the light of a failure on the part of the applicant to earlier raise what was submitted to be a compelling allegation. The finding of the Authority on this issue was open to it based on the evidence before it. There is no merit to this Ground. As was said by Thawley J in CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [21] – [24] inclusive:
“[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:
69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.
70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.
[22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.
[23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox.
[24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”
As to Ground 5 of the Amended Application for Review, it was asserted that the finding of the Authority that the applicant did not have an open court file was unsupported on the evidence. At [50] of its reasons, the Authority set out in detail why it did not accept that there was any open court file relating to the applicant. It did so in a reasoned and considered way. Its approach was not irrational or illogical so as to give rise to jurisdictional error. The findings on point were not extreme in the sense referred to by Wigney J in SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210, where at [52] and [55] where His Honour said:
“[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “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”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].”
There is no merit to Ground 5 of the Amended Application for Review.
Ground 6 of the Amended Application for Review was not argued at the hearing.
As to Ground 7 of the Amended Application for Review, this Ground asserted general error, and is related to the claims in Ground 2 which have already been dealt with. The Authority was careful in its analysis of all of the claims and evidence before it. It was a reasoned decision which the Authority arrived at.
It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] - [27], 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. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
Further it cannot be said that no other rational or logical decision maker could not have made the same decision as 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.”
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 establish jurisdictional error on the part of the Authority.
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 forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 28 November 2019
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