KOURO v Minister for Home Affairs
[2020] FCCA 911
•23 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KOURO v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 911 |
| Catchwords: MIGRATION – Application for a Student (Subclass 500) Visa – finding that application was not made in circumstances where the applicant intended genuinely to stay in Australia temporarily – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359(2), 499 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 |
| Applicant: | GKERGKI KOURO |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2494 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 20 April 2020 |
| Date of Last Submission: | 20 April 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 23 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maloney |
| Solicitors for the Applicant: | Clothier Anderson |
| Counsel for the First Respondent: | Mr Reilly |
| Solicitors for the First Respondent: | Mills Oakley |
| Second Respondent | Submitting appearance save as to costs |
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 9 April 2020 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,400.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
MLG 2494 of 2018
| GKERGKI KOURO |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a male citizen of Greece who arrived in Australia on 29 April 2016 pursuant to a 3 month Temporary Entrant Visa.
On 28 July 2016, the applicant applied for a Student (Subclass 500) Visa.
On 13 July 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.
On 27 January 2017, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.
On 12 April 2018, the Tribunal invited the applicant to provide information about his proposed course of study pursuant to the provisions of s.359(2) of the Migration Act 1958 (Cth) (‘the Act’) which empowered the Tribunal to invite, either orally (including by telephone) or in writing, a person to give information. [1] That letter sought a reply by 26 April 2018. By an email sent to the Department by the applicant’s migration agent on 26 April 2018, the agent replied as follows:
“I have spoken with the client above and I have been advised that he does not want to attend the hearing and wants the Member to make a decision in writing based on the evidence that he has in front of him/her.
The client is experiencing some sign of depression and was unable to fill any of the forms attached except signing them.”
Some blank documents signed by the applicant and entitled “Request for Student Visa information under s.359(2) of the Migration Act” were attached to such email. No further information was provided by the applicant, or his agent, to the Tribunal pursuant to the s.359(2) request.
[1] Letter dated 12 April 2018 sent to applicant at the address of the applicant’s migration agent. A
On 16 July 2018, the Tribunal affirmed the delegate’s decision.
On 20 August 2018, the applicant’s lawyers filed an Originating Application for review of the Tribunal’s decision. At the hearing before the Court, the applicant was granted leave, without objection, to rely upon the grounds of review as set out in an Amended Application for review filed on 9 April 2020. The grounds for review were as follows:
“Grounds of application:
1. The Tribunal failed to consider claims and evidence before it, or else failed to comply with a binding direction issued by the Minister pursuant to s 499 of the Migration Act 1958 (Cth) (Act), being ‘Direction No 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (Direction).
Particulars
At [17] of its reasons, the Tribunal referred to a number of ‘factors indicated by Direction 69’. As to each factor, it found that there was ‘no relevant evidence’ before it. Inter alia, it referred to the following factors:
·‘[T]he extent of the applicant’s personal ties to their home country (for example, family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country’: [9(b)] of the Direction;
·‘Value of the course to the applicant’s future’: [7], [12]; including ‘whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country’: [12(a)]; and ‘relevance of the course to the applicant’s past or proposed future employment in either in their home country or a third country’: [12(b)];
·‘[T]he applicant’s circumstances in their home country relative to the circumstances of others in that country’:[10], [6]; and the Applicant’s ‘economic circumstances… relative to the home country and to Australia’: [9(c)]; and
·‘[M]ilitary service commitments that would present as a significant incentive for the applicant not to return to their home country’: [9(d)].
However, the Applicant had put claims and evidence to the Tribunal relevant to these matters. The claims and evidence included the submissions made by the Applicant in his application materials (CB 1, 42); a submission made on his behalf by his representative (CB 37); property certificates (CB 60-76); family status certificates (CB 79-86); an education certificate (CB 87-8) and a statutory declaration from his employer in Greece (CB 19).
The Tribunal made no findings about the claims and evidence, save for finding that there was no evidence before it going to the factors it set out at [17] of its reasons.
2. The Tribunal erred by taking into account an irrelevant consideration, and/or failing to perform its statutory task.
Particulars
At [18] of its reasons, the Tribunal concluded that ‘[i]n consideration of the delegate’s decision and the limited evidence before the Tribunal’, it was not satisfied that the Applicant satisfied the genuine temporary entrant criterion. Given that the Tribunal was conducting a de novo merits review, it was impermissible for the Tribunal to take into consideration the Delegate’s decision as a matter that went to whether the Applicant satisfied the genuine temporary entrant criterion.
3. The Tribunal failed to consider the claims and evidence before it, or else misconstrued and so failed to comply with the Direction.
Particulars
At [16] of its reasons, the Tribunal noted that ‘in considering clause 14(b)(iii) of Direction 69 the Tribunal has considered the amount of time the applicant has spent in Australia the [sic] Tribunal finds the applicant has been onshore for some time without successfully completing a qualification and is using the student visa to maintain ongoing residence in Australia’.
Paragraph [14(b)(iii)] of the Direction provides that decision-makers should consider ‘the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification’.
This factor did not apply to the Applicant. The Applicant arrived in Australia on 29 April 2016 using an electronic travel authority that permitted him to remain in Australia as a visitor for 3 months. Self-evidently, this visa was not to be used to undertake studies in Australia. On 28 July 2016, the Applicant applied for a student visa. That application was the subject of the Tribunal’s decision. Accordingly, the Applicant had not spent any time in Australia as a student and had not had any lawful opportunity to complete a qualification.”
At [6] – [7] of its reasons, the Tribunal set out the relevant criteria as provided for in cl.500.212 of Schedule 2 to the Regulations. Clause 500.212 provided as follows:
“500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.”
At [8] of its reasons, the Tribunal noted that in considering whether or not the applicant satisfied the cl.500.212(a) criteria, the Tribunal was to have regard to Ministerial Direction No.69 (‘Direction No.69’) made pursuant to the provisions of s.499 of the Act. Clauses 13 and 14 of Direction No.69 relevantly provided as follows:
“The applicant's immigration history
13. An applicant’s immigration history refers both to their visa and travel history.
14. When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a. Previous visa applications for Australia or other countries, including:
i. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii. if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b. Previous travels to Australia or other countries, including:
i. if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii. the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv. if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance.”
At [9] of its reasons, the Tribunal noted that the relevant factors specified in Direction No.69 should not be used as a checklist, but were rather intended for guidance to decision makers when considering the applicant’s circumstances as a whole in relation to whether the genuine temporary entrant criterion had been satisfied or not.
At [10] of its reasons, the Tribunal recorded that it had reviewed the decision of the delegate, and it noted that the decision was not binding on the Tribunal. The Tribunal stated that it brought an independent view to the review application.
At [11] of its reasons, it was recorded that the applicant had responded to the invitation to provide information pursuant to s.359(2) of the Act. Of the two responses received on behalf of the applicant, the first response consented to the Tribunal deciding the review without a hearing. The second response recorded that the applicant had a current confirmation of enrolment in a course of study.
At [15] of its reasons, it was recorded that the applicant had submitted 3 confirmations of enrolment to the Department, each of which had expired. The latest in time had expired on 29 June 2018. It was recorded by the Tribunal that as at the time of the making of its decision, there was no evidence before the Tribunal that the applicant was then enrolled in a course of study.
At [16] of its reasons, when referring to cl. 14(b)(iii) of Direction No.69, the Tribunal recorded that it had considered the amount of time that the applicant had spent in Australia since his arrival in April 2016 – namely a period of some 2 years and 2 months. It was also noted by the Tribunal that during such period of time, the applicant had remained onshore in Australia without having successfully completed any qualification/course, notwithstanding that he had used his student visa application to maintain his ongoing residence in Australia.
At [17] of its reasons, the Tribunal recorded that there was no relevant evidence regarding various Direction No.69 factors, namely factors going to:
· Whether the applicant had reasonable reasons for not undertaking study in his home country;
· The extent of the applicant’s personal ties to his home country;
· Whether any military service in the home country was due to be undertaken;
· Whether there were any political or civil unrest circumstances in the home country of significance;
· Whether there were any economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to his home country;
· Any difference between the amount of remuneration which the applicant could expect to receive in the home country relative to that which he might be expected to receive in Australia;
· Whether there were any ties which the applicant had with Australia which would present as a strong incentive for him to remain in Australia;
· The value of the course for the applicant’s future employment circumstances in the home country relative to Australia or any other country; and
· The applicant’s circumstances in the home country relative to others in that country.
At [18] of its reasons, the Tribunal recorded that:
“In consideration of the delegate’s decision and the limited evidence before the Tribunal, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl. 500.212(a).”
Grounds of Amended Application
Ground 1.
The applicant claimed that the Tribunal had failed to consider claims and evidence before it, or that it failed to comply with Direction No.69. The applicant submitted that contrary to what was contained in [17] of the Tribunal’s reasons, the applicant had put claims and evidence to the Tribunal relevant to matters required to be considered by it.
It was conceded by the first respondent that there was some evidence before the Tribunal. Clearly there was. The first respondent submitted, however, that Ground 1 failed to properly have regard to the considerations of the Tribunal. In that regard, it is clear that the Tribunal reviewed the decision of the delegate which factually recorded relevant matters for consideration. At [14] of its reasons, the Tribunal recorded facts relating to some of the factors required to be considered under Direction No.69. Having done so, it is apparent that the Tribunal relevantly engaged with the issues before it. A decision maker in the position of the Tribunal is not required to refer to each and every item of evidence which was before it, before it arrived at its decision. As was said by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] – [47] per French, Sackville and Healy JJ:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
Secondly, there is a distinction between a finding that there was no evidence regarding certain matters, and the situation in the present case where the Tribunal found that there was “no relevant evidence” regarding certain matters. What the Tribunal found, was that based upon the evidence before it, it was not persuaded that the circumstances of the applicant was such that his application was cl.500.212(a) compliant. The Tribunal, on the evidence before it, did not accept that the applicant had intended genuinely to stay in Australia temporarily.
In an analogous case, it was said in Wickramasinghe v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 30 at [18] per Gray, Ryan and Gyles JJ as follows:
“[18] Accordingly, we agree with the way in which the learned primary Judge interpreted the Tribunal’s reasons. That interpretation was no more benevolent than is required by the Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 and by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271-272. It also accords with this analysis by Katz J (with whom Burchett and Lee JJ agreed) in A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 (unreported 16 March 1999), at [23]-[27];
“Two matters confirm me in my view about what it was that the Tribunal was seeking to convey by its use of the phrase ‘no evidence’ in par 40 of its statement of findings and reasons.
First, there is the very language of the second sentence of par 40, in which the Tribunal acknowledged the tendering of evidence before it which had referred to abuses of the Vietnamese judicial process, which evidence it said, however, did not ‘alone’ satisfy the Tribunal that A would be subjected to (relevantly) an unfair trial upon his return to Vietnam.
Secondly, there is the fact that the Tribunal had, in a passage in par 38 of its statement of findings and reasons, which passage I have quoted in par 17 of these reasons for judgment, already pointed out that several documents regarding the Vietnamese authorities’ claimed lack of respect for the rule of law and for human rights had been tendered as evidence in support of A’s likely fate should he become involved in a criminal prosecution upon his return to Vietnam. (Incidentally, one of those documents, the extract from the South China Morning Post to which the Tribunal made express reference in par 38, was said by A before this Court to be among the documents which had been before the Tribunal, but the existence of which it had denied by its use of the ‘no evidence’ language in par 40. It would be a surprising thing if, by its use of the ‘no evidence’ language in par 40, the Tribunal had intended to deny the existence of a document to which it had expressly referred only two paragraphs earlier in its statement of findings and reasons.)
… … …
However, even if such denial by the Tribunal had not accurately stated the fact, it would have been open, and, in light of Wu’s Case, apparently appropriate, to conclude that the Tribunal had not used the phrase ‘no evidence’ ‘in a technical sense’, and instead to ‘treat the [Tribunal’s] reference [to ‘no evidence’] as being to a lack of probative material confirmatory of what the applicant had put [to the Tribunal]’. The words which I have just quoted come from the reasons for judgment of Gummow J in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479 and they were treated by the primary Judge in the present matter as justifying, of themselves, the rejection of A’s attack on the use of the phrase ‘no evidence’ in par 40 of the Tribunal’s statement of findings and reasons. However, it is unnecessary for me to express a concluded view on that aspect of the matter, holding, as I do, the view which I have expressed above as to what the Tribunal had intended to convey by its use of the ‘no evidence’ language in par 40.”
(emphasis added)
The Tribunal was entitled to note, and take into consideration, the fact that although the applicant was married with a child, and although his wife had travelled to Australia, his wife and child were not included as part of the visa application. It is of note that the Tribunal specifically made reference to cl.14(b)(iii) in its reasons. Such subclause was relevant bearing in mind the fact that though the applicant had expressed in his visa application he wanted to study English to improve his work prospects when he returned home, the applicant had not completed any course giving rise to any qualification, let alone an English language qualification, notwithstanding that he had been in the country for over 2 years.
The Tribunal relied upon the information which it had before it. The applicant had not co-operated in providing further information of relevance, and as requested, pursuant to s.359(2) of the Act. In all of the circumstances, the Court finds that the Tribunal did the best which it could have done considering the limited information which had been provided to it by the applicant. There is no merit to Ground 1 of the Amended Application.
Ground 2.
As to Ground 2 of the Amended Application for review, the applicant takes issue with the Tribunal having recorded at [18] of its reasons that it had considered the delegate’s decision. That claim is too narrow. Though the Tribunal was tasked with undertaking a de novo consideration of the application for the visa, it was entitled to have regard to the contents of the delegate’s decision, a copy of which had been provided to it by the applicant. At [10] of its reasons, the Tribunal made clear that it did not regard the decision of the delegate as being binding upon it, further stating that the Tribunal brought an independent view to the review application. There is no merit to Ground 2.
Ground 3.
As to Ground 3 of the Amended Application for review, it was asserted that cl.14(b)(iii) of Direction No.69 did not apply to the applicant because the applicant’s application for the student visa had been refused. Such submission fails to recognise that cl.14(b)(iii) was one of a number of factors able to be taken into account by the Tribunal when arriving at its decision. In this case, the Tribunal was entitled to have regard to the fact that at the time of the decision there was no evidence that the applicant was enrolled in any qualifying course of study. It was also entitled to have regard to the fact that over a 2.2 year period the applicant had failed to complete any course of study. Both such facts were relevant matters for the Tribunal to have regard to. This Ground is without merit.
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, Kiefel 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 the Tribunal. 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 of the Tribunal 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 demonstrate jurisdictional error on the part of the Tribunal.
The Amended Application for review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 23 April 2020
copy of Ministerial Direction No.69 made pursuant to the provisions of s.499 of the Act was
attached – Court Book (CB) pp. 124 – 131.
0
9
3