JCL24 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 758

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

JCL24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 758

File number: PEG 410 of 2024
Judgment of: JUDGE LADHAMS
Date of judgment: 27 May 2025
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 reasoned illogically, irrationally and failed to give the applicant’s claim active intellectual consideration – whether the Tribunal made unwarranted assumptions – whether the Tribunal misapprehended the evidence of the applicant – whether the Tribunal made unreasonable credit findings – whether the Tribunal failed to consider all of the corroborative evidence – whether the Tribunal failed to determine that the law prohibiting publication of Liberation Tigers of Tamil Eelam symbols was discriminatory to the applicant for Convention reasons – jurisdictional error established – writs issued.    
Legislation:

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Migration Act 1958 (Cth) ss 36, 424A, 476, 477

Migration Regulations 1994 (Cth) Sch 2 cl 600.211

Cases cited:

BEL16 v Minister for Home Affairs (2019) 167 ALD 295; [2019] FCA 1678

BJO18 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 94; [2020] FCAFC 189

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19

DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2

DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353

Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666

MZAWP v Minister for Immigration and Multicultural Affairs (2005) 85 ALD 41; [2005] FCAFC 335

VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117

Weheliye v Minister for Immigration and Multicultural Affairs [2001] FCA 1222
Division: Division 2 General Federal Law
Number of paragraphs: 121
Date of hearing: 9 April 2025
Place: Perth
Counsel for the Applicant: Mr G Schipp
Solicitor for the Applicant: Australian Presence Legal
Counsel for the First Respondent: Mr N Dour
Second Respondent: Submitting appearance, save as to costs
Solicitor for the Respondents: Sparke Helmore Lawyers

ORDERS

PEG 410 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JCL24

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

27 MAY 2025

THE COURT ORDERS THAT:

1.A writ of certiorari issue to quash the decision made by the Administrative Appeals Tribunal on 11 October 2024 (case number 2427096).

2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter…

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JCL24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 758
Case
[2025] FedCFamC2G 758
Decision Date

CaseChat Overview and Summary

In JCL24 v Minister for Immigration and Citizenship, the Federal Court considered an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) affirming a decision not to grant the applicant a protection visa. The applicant argued that the AAT's decision was illogical, irrational, and failed to give his claim active intellectual consideration, among other grounds. The central issue before the court was whether the AAT had erred in its assessment of the applicant's credibility and in its interpretation of the evidence presented.

The court found that the AAT had indeed made several errors in its reasoning. It highlighted that the AAT had made unwarranted assumptions and failed to give the applicant's evidence the necessary intellectual consideration. The court noted that the AAT's credibility findings were underpinned by unexpressed assumptions and were not based on rationally probative evidence. The AAT had also misapprehended certain evidence and made unreasonable credit findings. Additionally, the AAT failed to consider all of the corroborative evidence provided by the applicant. The court determined that these errors led to a decision that was illogical, irrational, and unreasonable, thereby constituting a jurisdictional error.

The court's reasoning underscored the importance of careful and fair assessment of credibility, avoiding undue scepticism and confirmatory bias, and ensuring that decisions are based on rationally probative evidence. The court found that the AAT's failure to properly consider the applicant's evidence and its flawed credibility assessments significantly undermined the decision-making process.

As a result of these findings, the court quashed the AAT's decision and remitted the matter back to the AAT for reconsideration. The court's decision emphasized the need for decision-makers to approach refugee claims with the necessary sensitivity and to avoid errors that could lead to unjust outcomes.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant referred to the principles in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 as being relevant to the assessment of considering whether a decision-maker has acted reasonably. There is no doubt that these principles are relevant. In circumstances where ground 1 is pleaded as, amongst other things, an illogicality and irrationality ground, it is also relevant to have regard to the reasoning of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, where their Honours said at [131] and [135]: 131.… The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.…135.… 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.Unwarranted assumptions and the need to proceed by reference to rationally probative evidence In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 (DAO16) at [45], in assessing whether the Tribunal’s credibility findings were unreasonable, the Court found that several findings were underpinned by ‘unexpressed and unwarranted assumptions not based in any evidence’. The Court in Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 685 confirmed that a decision must be made based on rationally probative evidence, rather than speculation or suspicion (also cited in DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353 at [27]). Credibility findings Credibility findings can be challenged on judicial review. In BEL16 v Minister for Home Affairs (2019) 167 ALD 295; [2019] FCA 1678, Beach J said at [16]-[26]:16.First, it is not in doubt that in assessing credibility, a Tribunal may rely upon inconsistencies properly so-called, but the Tribunal must reason carefully and fairly to avoid any undue propensity to scepticism. Indeed, an error may be identified in how the Tribunal went about its task if the Tribunal had approached the task in one or more of the following ways:(a)Commencing a review of the material and evidence provided by an applicant with an unwarranted degree of scepticism.(b)Engaging in confirmatory bias by inappropriately discounting material prima facie in support of the applicant’s position before the totality of the material had been considered.(c)Viewing inconsistencies, vagueness or omissions in the applicant’s version of events without regard to imperfections in memory that naturally occur over time or due to stress or language difficulties particularly when an interpreter has been used or due to reticence to be forthcoming with people or bodies perceived to be in authority. In this respect, inconsistencies, vagueness or omissions do not necessarily indicate a deliberate lack of truthfulness, although they may affect the assessment of reliability. Indeed, and conversely, too much detail and consistency may be “merely corroborative detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative” in the words of WS Gilbert’s Pooh-Bah.(d)Viewing the absence of documentary material without regard to the improbability that such material would exist or be in the possession of the applicant at either the time he applied for a visa or at the time of the review before the Tribunal or, conversely, discounting documentary material put forward by the applicant without good reason.17.But to be clear, whether I would have gone about the fact finding exercise in the same fashion or made the same findings as the Tribunal is not to the point. The question is whether it was open to the Tribunal to engage in the process of reasoning in which it so engaged.18.Second, over-ready use of labels such as “inconsistency” or “discrepancy” when characterising evidence of events invites error.19.Third, to mention a claim to the Tribunal not having mentioned it to the delegate or vice versa may be relevant to credibility, but may also be reasonably explicable. Further, giving more detail on one occasion than another, or emphasising different matters at different times, may be reasonably explicable by the context or the different stage of the relevant inquiry in a way that does not invite an adverse credibility finding.20.Fourth, even where there are inconsistencies or discrepancies in evidence, their significance and weight must be assessed having regard to the centrality or peripherality of the particular issue upon which the evidence is given.21.Fifth, although in some circumstances it can be legitimate for the Tribunal to have regard to the timing of the making of a claim in assessing whether it is satisfied of the veracity of the claim, such an analysis is confined by principles of reasonableness, which includes as I have already indicated being “conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given” (AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227 at [28] per Kenny, Griffiths and Mortimer JJ).22.Sixth, I accept that the Tribunal’s reasons should be read as a whole, and further should not be “construed minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 drawing upon Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287).23.Seventh, I refer to and repeat what I said in DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 at [46] to [52].24.Eighth, in AVQ15, the Full Court observed that “[c]onsiderable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review” (at [41(f)]). Further, it observed (at [41(c)]) that:Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.25.Ninth, I accept that where there are multiple reasons justifying why the Tribunal has made an adverse credibility finding and one of them has been shown to be flawed, there may be occasions where the finding can still stand with no jurisdictional error if other reasons singularly or cumulatively can in any event be independently drawn upon and were drawn upon to justify the adverse credibility finding.26.Finally, to the extent that it may be suggested that before I deal with the question of materiality I have to determine the error to be of a particular type, the errors that I have identified elsewhere so infected the Tribunal’s reasoning such that the relevant findings were illogical, irrational or unreasonable. And as a result and overall given their materiality, the Tribunal’s decision was affected by jurisdictional error. Of course, the use of expressions such as illogicality, irrationality or unreasonableness may be no more than to strongly emphasise disagreement with someone else’s process of reasoning on an issue of fact. And I also accept that differences of degree, impression and empirical judgment between the approach and reasoning of the Tribunal as compared with that of a judge undertaking judicial review or an appeal therefrom, do not establish illogicality, irrationality or unreasonableness. There is a high threshold.

Decision

Reasons for decision

The Tribunal affirmed the delegate’s decision on 11 October 2024. SUMMARY OF THE TRIBUNAL DECISION Those parts of the Tribunal decision that are most relevant to the judicial review application are discussed in detail in the consideration of the grounds below. The summary in this section is a general overview of the Tribunal decision to give better context to the consideration of the judicial review application below. The Tribunal did not find the applicant to be a credible or truthful witness and considered that there were numerous inconsistencies in his evidence, including in relation to the following matters: (a)based on the applicant giving evidence that the last time he followed up his outstanding visitor visa application was in December or January, while also acknowledging that the visitor visa application had been made on 24 February 2024 (which the Tribunal accepted), the Tribunal found that the applicant gave incorrect evidence to the Tribunal as to the timeframe in which the visitor visa application was filed, and the basis of his decision not to use the same agent that he claims completed the visitor visa application for him;(b)the Tribunal found that stamped pages that purported to be from the applicant’s passport showing travel were from someone else’s passport;(c)the Tribunal found that a certificate of registration of a motor vehicle, provided by the applicant, appeared to have been altered and noted the applicant’s evidence that the document was not genuine; (d)the applicant gave inconsistent evidence about whether he owned property, with the Tribunal finding that the applicant did own a property the subject of a deed of transfer provided to the Tribunal;(e)the applicant provided a letter from an employer in support of his visitor visa application, which contained an employee signature that did not match the applicant’s signature, and which suggested that the applicant worked as a Senior Quantity Surveyor, whereas the applicant gave evidence that he has never worked as a quantity surveyor; (f)the applicant misrepresented in his visitor visa application that both of his parents were living in Sri Lanka, whereas his mother was in Australia at the relevant time and his father was deceased; and(g)the applicant gave conflicting evidence to the Department and to the Tribunal as to when he last saw his older brother. The Tribunal considered and rejected the applicant’s submission that the visitor visa application was prepared by an agent and that the action of an agent should not be used to assess the applicant’s credibility with respect to his claims for protection. The Tribunal was satisfied that the applicant did not face harm due to his Tamil ethnicity alone. However, the Tribunal accepted that the applicant’s Tamil ethnicity was a risk factor that needed to be considered in conjunction with the applicant’s claims as a whole. The Tribunal accepted that the applicant is an affluent Tamil businessman who operated a jewellery shop in Sri Lanka. The Tribunal considered it possible that the applicant had experienced some extortion at the hands of the Criminal Investigation Department (CID) after posting LTTE symbols on his Facebook page. However, the Tribunal did not accept that this fact by itself gave rise to a real risk or a real chance that the applicant would suffer from extortion to any relevant degree in the future.

Ratio Decidendi

Legal Principle Established

There is no dispute between the parties as to the legal principles to be applied in this matter. Unreasonableness, illogicality and irrationality The applicant referred to the principles in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 as being relevant to the assessment of considering whether a decision-maker has acted reasonably. There is no doubt that these principles are relevant. In circumstances where ground 1 is pleaded as, amongst other things, an illogicality and irrationality ground, it is also relevant to have regard to the reasoning of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, where their Honours said at [131] and [135]: 131.… The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.…135.… 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.Unwarranted assumptions and the need to proceed by reference to rationally probative evidence In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 (DAO16) at [45], in assessing whether the Tribunal’s credibility findings were unreasonable, the Court found that several findings were underpinned by ‘unexpressed and unwarranted assumptions not based in any evidence’. The Court in Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 685 confirmed that a decision must be made based on rationally probative evidence, rather than speculation or suspicion (also cited in DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353 at [27]). Credibility findings Credibility findings can be challenged on judicial review. In BEL16 v Minister for Home Affairs (2019) 167 ALD 295; [2019] FCA 1678, Beach J said at [16]-[26]:16.First, it is not in doubt that in assessing credibility, a Tribunal may rely upon inconsistencies properly so-called, but the Tribunal must reason carefully and fairly to avoid any undue propensity to scepticism. Indeed, an error may be identified in how the Tribunal went about its task if the Tribunal had approached the task in one or more of the following ways:(a)Commencing a review of the material and evidence provided by an applicant with an unwarranted degree of scepticism.(b)Engaging in confirmatory bias by inappropriately discounting material prima facie in support of the applicant’s position before the totality of the material had been considered.(c)Viewing inconsistencies, vagueness or omissions in the applicant’s version of events without regard to imperfections in memory that naturally occur over time or due to stress or language difficulties particularly when an interpreter has been used or due to reticence to be forthcoming with people or bodies perceived to be in authority. In this respect, inconsistencies, vagueness or omissions do not necessarily indicate a deliberate lack of truthfulness, although they may affect the assessment of reliability. Indeed, and conversely, too much detail and consistency may be “merely corroborative detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative” in the words of WS Gilbert’s Pooh-Bah.(d)Viewing the absence of documentary material without regard to the improbability that such material would exist or be in the possession of the applicant at either the time he applied for a visa or at the time of the review before the Tribunal or, conversely, discounting documentary material put forward by the applicant without good reason.17.But to be clear, whether I would have gone about the fact finding exercise in the same fashion or made the same findings as the Tribunal is not to the point. The question is whether it was open to the Tribunal to engage in the process of reasoning in which it so engaged.18.Second, over-ready use of labels such as “inconsistency” or “discrepancy” when characterising evidence of events invites error.19.Third, to mention a claim to the Tribunal not having mentioned it to the delegate or vice versa may be relevant to credibility, but may also be reasonably explicable. Further, giving more detail on one occasion than another, or emphasising different matters at different times, may be reasonably explicable by the context or the different stage of the relevant inquiry in a way that does not invite an adverse credibility finding.20.Fourth, even where there are inconsistencies or discrepancies in evidence, their significance and weight must be assessed having regard to the centrality or peripherality of the particular issue upon which the evidence is given.21.Fifth, although in some circumstances it can be legitimate for the Tribunal to have regard to the timing of the making of a claim in assessing whether it is satisfied of the veracity of the claim, such an analysis is confined by principles of reasonableness, which includes as I have already indicated being “conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given” (AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227 at [28] per Kenny, Griffiths and Mortimer JJ).22.Sixth, I accept that the Tribunal’s reasons should be read as a whole, and further should not be “construed minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 drawing upon Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287).23.Seventh, I refer to and repeat what I said in DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 at [46] to [52].24.Eighth, in AVQ15, the Full Court observed that “[c]onsiderable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review” (at [41(f)]). Further, it observed (at [41(c)]) that:Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.25.Ninth, I accept that where there are multiple reasons justifying why the Tribunal has made an adverse credibility finding and one of them has been shown to be flawed, there may be occasions where the finding can still stand with no jurisdictional error if other reasons singularly or cumulatively can in any event be independently drawn upon and were drawn upon to justify the adverse credibility finding.26.Finally, to the extent that it may be suggested that before I deal with the question of materiality I have to determine the error to be of a particular type, the errors that I have identified elsewhere so infected the Tribunal’s reasoning such that the relevant findings were illogical, irrational or unreasonable. And as a result and overall given their materiality, the Tribunal’s decision was affected by jurisdictional error. Of course, the use of expressions such as illogicality, irrationality or unreasonableness may be no more than to strongly emphasise disagreement with someone else’s process of reasoning on an issue of fact. And I also accept that differences of degree, impression and empirical judgment between the approach and reasoning of the Tribunal as compared with that of a judge undertaking judicial review or an appeal therefrom, do not establish illogicality, irrationality or unreasonableness. There is a high threshold.