Lal v Minister for Home Affairs

[2019] FCCA 2676

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAL v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2676

Catchwords:
MIGRATION – Application for partner visa – illogical findings by Tribunal – failure by Tribunal to have regard to relevant considerations – decision quashed.

Legislation:

Migration Regulations 1994 (Cth) rr.1.15A(3), Sch. 2. Cl. 820.211(2)(a).

Migration Act 1958 (Cth) s.5F.

Cases cited:

DTN16 & Ors v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2019] FCA 1525.

Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210.

Applicant: HARKESH LAL LAL

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1237 of 2018

Judgment of: Judge Egan

Hearing date: 29 August 2019

Date of Last Submission: 29 August 2019

Delivered at: Brisbane

Delivered on:  20 September 2019

REPRESENTATION

Counsel for the Applicant: Mr P. Kronberg

Solicitors for the Applicant: Jeffrey McLaren Solicitors

Counsel for the Respondents: Mr A. Psaltis

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the amended application for review filed on 20 March 2019 be granted.

2. That the decision of the Administrative Appeals Tribunal made on 29 October 2018 be quashed. 

3. That a writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine according to law the applicant’s application for review of the second respondent's decision, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.

4. That for the purpose of the Administrative Appeals Tribunal determining the Applicants’ application, that it be constituted by a different member than the member who handed down the decision on 29 October 2018.

5. That the first respondent pay the Applicant’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 1237 of 2018

Harkesh Lal Lal

Applicant

And

Minister for Home Affairs

First Respondent

Administrative Appeals Tribunal

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who applied for a partner visa on 9 April 2014 on the basis of his relationship with his sponsor.

2. On 18 April 2017, a delegate of the Minister refused to grant the applicant a partner visa on the basis that the applicant had not demonstrated that he and the sponsor were in a genuine married relationship.

3. On 27 April 2017, the applicant sought review of the delegate’s decision in the Administrative Appeals Tribunal (the Tribunal). The applicant provided extensive material to the Tribunal. He appeared at the hearing, gave evidence, and made submissions. His sponsor and her father also appeared at the hearing before the Tribunal.

4. On 29 October 2018, the Tribunal affirmed the delegate’s decision.

5. On 20 March 2019, the applicant filed an amended application seeking review of the decision of the Tribunal.

6. The grounds for review relied upon at the hearing before the Court were as follows:

   “Grounds of Application

   1. The decision was an improper exercise of power

   i) Irrelevant considerations were taken into account in the exercise of power.

   ii) The member failed to take relevant considerations into account in the exercise of power.

   iii) [Not relied upon]

   iv) The decision was so unreasonable that no reasonable person would have so exercised the power.

   2. [Not relied upon]

   3. [Not relied upon]”

7. The claims of the applicant were supported by material which had been provided to the Department, as well as the extensive material provided by the applicant to the Tribunal as set out in [6] of the Tribunal’s reasons.

8. At [3] of its reasons, the Tribunal recorded that the delegate refused to grant the visa on the basis that the applicant had not satisfied the relevant clause 820.211(2)(a) criteria as set out in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), which relevantly provided as follows:

   “820.211 

   (1)  The applicant:

   (a)  is not the holder of a Subclass 771 (Transit) visa; and

   (b)  meets the requirements of subclause (2), (5), (6), (7), (8) or (9).

   (2)  An applicant meets the requirements of this subclause if:

   (a)  the applicant is the spouse or de facto partner of a person who:

   (i)  is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (ii)  is not prohibited by subclause (2B) from being a sponsoring partner; and

   …”

9. At [9] of its reasons, the Tribunal relevantly considered the statutory definition of “spouse” as set out in s. 5F of the Migration Act 1958 (Cth) (the Act) which provided as follows:

   “Section 5F

   Spouse

   (1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

   (2) For the purposes of subsection (1), persons are in a married relationship if:

   (a) they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

   (c) the relationship between them is genuine and continuing; and

   (d) they:

   (i) live together; or

   (ii) do not live separately and apart on a permanent basis.

   (3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

   Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.”

10. The Tribunal also referred to the provisions of regulation 1.15A(3) of the Regulations. Regulation 1.15A relevantly provided as follows:

    “Regulation 1.15A        

    Spouse

    (1)  For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

    (2)  If the Minister is considering an application for:

    (a)  a Partner (Migrant) (Class BC) visa; or

    (b)  a Partner (Provisional) (Class UF) visa; or

    (c)  a Partner (Residence) (Class BS) visa; or

    (d)  a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)  The matters for subregulation (2) are:

    (a)  the financial aspects of the relationship, including:

    (i)  any joint ownership of real estate or other major assets; and

    (ii) any joint liabilities; and

    (iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv) whether one person in the relationship owes any legal obligation in respect of the other; and

    (v) the basis of any sharing of day-to-day household expenses; and

    (b) the nature of the household, including:

    (i) any joint responsibility for the care and support of children; and

    (ii) the living arrangements of the persons; and

    (iii) any sharing of the responsibility for housework; and

    (c) the social aspects of the relationship, including:

    (i) whether the persons represent themselves to other people as being married to each other; and

    (ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and

    (iii) any basis on which the persons plan and undertake joint social activities; and

    (d) the nature of the persons' commitment to each other, including:

    (i) the duration of the relationship; and

    (ii) the length of time during which the persons have lived together; and

    (iii) the degree of companionship and emotional support that the persons draw from each other; and

    (iv) whether the persons see the relationship as a long-term one.

    (4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).”

Approach of the Tribunal

1. At [13]-[23] inclusive of its reasons, the Tribunal considered the history of the relationship between the applicant and the sponsor, as well as the applicant’s past history. At [14]-[15] of its reasons, the Tribunal descended into a minute consideration of matters relating to how the applicant and the sponsor came to be married. The Tribunal there found that there were inconsistencies in the applicant’s versions. This  Court finds that if there were any such inconsistencies, they were inconsequential and immaterial to an overall consideration of the applicant’s credibility. For example, claimed contradictions between the contents of an affidavit by the applicant’s father (quoted in [15]) and what the applicant said about his father’s attitude to his marriage, even if established, were no more than a reflection of minor differences in nuance expressed within the context of a familial relationship. That was also the case in relation to answers given by the applicant to questions put to him by the Tribunal. The fact that the Tribunal seemed to fasten upon those matters in such detail was unreasonable for the purpose of founding, along with other similar findings, a justification for the Tribunal reaching a conclusion that the applicant lacked credibility.

2. At [18]-[21] of its reasons, the Tribunal similarly examined in close detail the history given by the applicant about his having married the sponsor, and as to his marriage circumstances thereafter. The finding of inconsistency in his claims by the Tribunal at [20] was unwarranted. The discourse relating to the circumstances in which the marriage took place reflected the normal use of language y a person not entirely fluent in the English language.  One would expect some imprecision in those circumstances. The same considerations apply to the analysis by the Tribunal of the applicant’s work history. The applicant’s stated history as to his work patterns was a reflection of how work patterns change from time to time. The inconsistency found by the Tribunal ought to have related to the inconsistent nature of the applicant’s work practice as a driver of a commercial vehicle, rather than as an example of the applicant providing inconsistent answers to questions put to him by the Tribunal. So much was accepted by the Tribunal at the end of that paragraph when it found that it accepted that driver log books submitted by the applicant were “…consistent with the applicant driving between Grafton, Brisbane and Melbourne (and additional places as well). The Tribunal accepts that they are evidence of the applicant’s work activities.” The finding that the applicant responded inconsistently was illogical and unreasonable.

3. At [27]-[29] of its reasons, the Tribunal found, under the heading “Financial aspects of the relationship”, that there was a paucity of evidence supporting the proposition that the applicant and the sponsor were in a genuine spousal relationship. However, it is clear that the applicant and the sponsor had minimal financial resources available to them in any event. The Tribunal seems to have disregarded that fact that when the sponsor broke her leg the applicant took time off work to care for her. If there was no genuine spousal relationship, one would have thought that the applicant would have continued working and making money for his own use and benefit, leaving the sponsor to be cared for by others. In circumstances where the applicant and the sponsor were lacking in financial stability, the fact that the applicant lost work and money by taking time off to look after the sponsor is suggestive of there being a genuine spousal relationship. The finding by the Tribunal on that issue to the contrary was illogical and unreasonable.

4. At [64] of its reasons, the Tribunal found as follows:

   “[64] In all the circumstances, the Tribunal is not satisfied that the parties have a mutual commitment to a shared life to the exclusion of all others, are in a genuine and continuing relationship, and live together or not separately and apart on a permanent basis.”

5. Such findings were directly related to what the Tribunal identified, at [7] of its reasons, as being “The issue …” in the case, namely where the Tribunal said:

   “[7] The issue in the present case is whether the applicant is the spouse of the sponsor.”

   (Emphasis added)

6. The findings at [64] of the Tribunal’s reasons are of particular relevance when viewed in the context of what the Tribunal considered to be the central issue in the case. Findings which were made by the Tribunal on the question of whether a spousal relationship existed or not were based upon a number of different aspects of the evidence before the Tribunal. The way in which the Tribunal arrived at its decision on what it considered the central issue in the case was based upon its consideration of all of the claimed circumstances of the relationship.

7. At [60] of its reasons, the Tribunal found that the alleged spousal relationship was contrived. It said as follows:

   “[60] The Tribunal has considered all of the circumstances of the relationship before it. The Tribunal considers that the relationship about which it heard are consistent with a contrived relationship. The Tribunal considers that there is insufficient evidence that the parties provide one another with companionship or emotional support. After considering all of the evidence before it, the Tribunal is not persuaded that the review and visa applicants have a long-term commitment to the relationship.”

8. At [61] of its reasons, the Tribunal found that most of the documentary evidence produced by the applicant had been fabricated or produced to support a migration outcome. It was there said:

   “[61] … The Tribunal is of the view that evidence of relationships can be obtained even if the relationship is not genuine. The Tribunal does not consider the documentary evidence to be convincing given the other concerns of the Tribunal. …”

   (Emphasis added)

9. The “other concerns of the Tribunal” were those which the Tribunal found were unconvincing or otherwise not probative of the existence of a genuine spousal relationship. There were a number of them. The language used by the Tribunal evidenced the fact that the Tribunal had made its decision based upon its cumulative assessment of the applicant’s evidence as being unconvincing. Such decision was dependent upon there being a logical basis for each of its findings on claims which it found to be unconvincing or implausible.

10. The circumstances in which adverse findings on credibility made by a Tribunal constituted jurisdictional error were considered by Beach J in DTN16 & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525 at [46]-[52] inclusive where it was said:

    “[46] If a Tribunal purports to make its decision on the combination of facts A, B and C, and fact C is shown to be incorrect, prima facie, materiality of the error on the face of the reasons would seem to be clear. By prima facie I mean that although that may be the starting position for a consideration of materiality, it may not be the end point for such a determination.

    [47] Contrastingly, if a Tribunal purports to make its decision on the disjunction of facts A, B or C, and fact C is shown to be incorrect, prima facie there may be no materiality of the error on the face of the reasons.

    [48] These are the easy examples.

    [49] But what about the case where fact C is not only shown to be incorrect, but the error made concerning fact C has dual dimensions. So take the case where fact C was not only wrong, but was also wrongly used to make an adverse credibility finding.

    [50] Take the disjunctive case again where the Tribunal purported to make its decision on the disjunction of facts A, B or C, and it is shown that fact C has the dual dimension of being both wrong but also having been wrongly used to make an adverse credibility finding. Now assume that facts A or B were also based upon an adverse credibility finding. It may be said that the adverse credibility finding on fact C, posited to be wrong on my hypothesis, has also contaminated the foundation upon which facts A or B were also based. But it all depends upon the context and circumstances. If the type of adverse credibility finding, for example, exaggeration, is common to the foundation of each of facts A, B or C, the adverse credibility error concerning fact C may undermine the foundation upon which facts A or B were based. Contrastingly, if the type of adverse credibility finding is not common, this may not be able to be said. Moreover, even if it is a common type of adverse credibility finding that underpins each of facts A, B or C, and the adverse credibility finding concerning fact C is wrong, that may not be definitive to undermine facts A or B. For example, exaggeration on one aspect of a story does not necessarily entail exaggeration on another aspect.

    [51] I have sought to simplify the discussion for illustrative purposes only. But more generally there is force in the observations of Lee J in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44] and [45] that:

    It is not realistic to put the various aspects of the appellant’s evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] “an assessment of credibility is not necessarily linear”. Put another way, although it is not accurate to say that the Hospital Evidence was minor, as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89, “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.” …

    To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [81]:

    …decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.

    [52] Moreover, and on a related aspect, one must be cautious in taking the carefully expressed linear reasoning of the Tribunal and arguing that a later credibility finding in the sequence of the written reasons cannot have affected a credit finding earlier in the sequence. The logic, structure and flow of reasons does not necessarily dictate how in reality credibility findings on one aspect may or may not have consciously or subconsciously informed another aspect.”

11. In this case the Tribunal, at [63] of its reasons, found as follows:

    “[63] … The Tribunal finds it implausible that parties in a genuine relationship would not bother to register their marriage for more than 3 years after it took place. …”

12. As to such finding, the Tribunal was there clearly impugning the credibility of the applicant and the sponsor by inferring that the registration of the marriage on 21 March 2017, some 3 years and 2 weeks after the marriage between the applicant and the sponsor on 7 March 2014, was suggestive of a lack of mutual commitment to each other and a contrivance on their part. Such finding was, in the circumstances, illogical and unreasonable, and otherwise failed to take into account relevant considerations, in the following respects:

    a)The Tribunal assumed, unreasonably, that only people in a genuine relationship would, at a time shortly after a marriage, cause such marriage to be registered. Such assumption belies the reality that many people would be unconcerned about so registering their marriage, or obtaining a certificate of marriage, consequent upon its due registration. Some people are more fastidious than others when it comes to such matters. If a person is slow to ensure that their marriage is registered, such slowness does not in any way suggest that the parties to the marriage were not in a genuine spousal relationship, either at the time of the marriage, or subsequently. It was illogical for the Tribunal to have so found. There was no basis for such finding.

    b)The Tribunal failed to have regard to the contents of a letter from the Registrar of the Grafton Local Court dated 28 July 2017 sent to the applicant. That letter clearly constitutes an admission on the part of the Registrar that though the applicant and the sponsor were married at the Grafton Local Court on 7 March 2014, the registration of that marriage did not occur in a timely fashion because, for reasons unknown, and without any fault on the part of the applicant or his sponsor, documents sent by the Court to the NSW Registry of Births, Deaths and Marriages for registration of the marriage had not been duly processed. It was not, therefore, the fault of the applicant or the sponsor that their marriage had not been registered, and such finding by the Tribunal that the delay in registration evidenced the lack of a genuine relationship was wrong, illogical, and was made in circumstances where the Tribunal had failed to have regard to the clear and obvious contents of the letter from the Grafton Local Court. It also failed to have regard to the date of issue of the certificate of marriage. [1]

    [1]        Court book pp. 221 – 222.

    c)The letter from the Grafton Local Court to the applicant dated 28 July 2017 relevantly provided as follows:

    “

    Local Court
    47 Victoria St
    PO Box 16 GRAFTON NSW 2460
    Tel [phone] | Fax [phone]
    Email [email protected]

    Mr Harkesh Lal

    67 Cambridge St
    South Grafton NSW 2460

    Dear Harkesh Lal

    This letter is to confirm that on the 7^th March 2014 at Grafton Local Court marriage was solemnized between the following parties

    Bridegroom: Harkesh LAL

    Bride: Deborah Anneliese Padmini VAN ASH

    A certified copy of the entry from the Marriage Register held at this office is attached.

    The relevant documents were posted by this registry to the NSW Registry of Births Deaths and Marriages for registration, however for reasons beyond the control of the parties there was a delay in the registration.

    Please contact this office if you require any further information or assistance

    Yours faithfully

    (Signature)

    Kirsty Netzler
    Registrar
    Grafton Local Court
    Phone: [phone]
    Email: [email protected]

    28 July 2017”

    
    
    

    d)It was illogical for the Tribunal to have made the finding that it did in [63] of its reasons based upon its short analysis of the lack of early registration of the marriage as recorded in [45] of its reasons, which paragraph provided as follows:

    “[45] The Tribunal put further material to the applicant pursuant to the provisions of section 359AA of the Act. The Tribunal referred the applicant to the decision record of the department, and in particular to the paragraph which stated:

    On 27 January 2017 you were requested to provide your registered marriage certificate to substantiate your claim that you and your sponsor were married on 7 March 2014. You have provided a registered marriage certificate, however it appears that this marriage certificate has been registered by the Registry of births deaths and marriages on 21 March 2017, over three years after you participated in a marriage ceremony. This leads me to have doubts about why this marriage had not been registered and leads me to have doubts about whether this marriage would have ever been legally registered had the department not requested this information.

    The applicant's initial response was that Immigration did not ask him for the certificate. He then said that he had never received a marriage certificate by post, notwithstanding he had been told by the courthouse that he would. He therefore said that he had never been asked about a marriage certificate, and said that there was a letter from the courthouse explaining that the certificate had not been sent.”

1. This Court finds that such adverse finding on the part of the Tribunal in relation to the late registration of the marriage was so intertwined with the other adverse findings of the Tribunal on the question of the applicant’s credibility, as referred to above, that cumulatively, such error was jurisdictional in nature. It could not be said that had those erroneous findings not been made, the Tribunal would have nevertheless been satisfied that there were other compelling reasons to found an overall adverse finding on credibility against the applicant. The adverse finding was one which a reasonable person, who had considered all of the evidence, could not have arrived at.

2. Further evidence of illogicality on the part of the Tribunal was its analysis of the circumstances in which the applicant was said to have not remembered the identity of the marriage celebrant who was present at the marriage ceremony. That analysis was set out in [16] of the Tribunal’s reasons, where, in part, the Tribunal found:

   “[16] … The Tribunal considers that the applicant’s equivocation regarding the identity of the marriage celebrant and the location of the marriage might throw doubt upon the nature of the relationship, in particular as to whether the parties have a mutual commitment to a shared life to the exclusion of all others, and are in a genuine and continuing relationship. The Tribunal considers that in a genuine relationship based on mutual commitment the applicant would have a clear and unequivocal recollection of the identity of the marriage celebrant and the location of the marriage.”

3. First, the discourse concerning the place of marriage as set out by the Tribunal in [16] of its reasons was suggestive of the applicant and the applicant having attended a Sikh temple for a blessing after the formal civil ceremony had been concluded. The Tribunal was illogical in finding that it had concerns about the explanation provided by the applicant in relation to his recollection of his marriage in that respect. The applicant clearly recalled that after the civil ceremony the parties had attended a Sikh temple in Grafton for a religious blessing. There could be no doubt that that the applicant was confused or equivocal on that point, yet the Tribunal found otherwise.

4. Second, it is illogical for the Tribunal to have found that if someone fails to recall the name of the marriage celebrant who presided at their wedding, some years beforehand, that such failure constituted evidence of such marriage not having been indicative of a genuine spousal relationship. A civil ceremony conducted at a local court house by a civil celebrant previously unknown to the parties to the marriage is not something which would necessarily give rise to such an expectation. It certainly was not open for the Tribunal to so find. Different people have different recollections of such matters.  There is no universal rule able to be adopted in such circumstances, yet the Tribunal has acted as if there was.  It was unreasonable and illogical for the Tribunal to so find.

5. The adverse credibility finding in that latter respect falls into the same category of interdependent illogical factual findings as those in relation to the non-registration of the marriage, and of the other instances of illogicality or unreasonableness as referred to earlier. Such finding could not be divorced or separated from the other examples found by the Tribunal to constitute grounds for the Tribunal to have made adverse credibility findings against the applicant.

6. The incorrect and illogical finding about the applicant’s evidence relating to the circumstances in which the marriage occurred constituted underlying jurisdictional error on the part of the Tribunal. The Court adopts what was said by Wigney J in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [49]-[52] and at [55], namely:

   “[49] There may be circumstances where illogicality or irrationality in the decision-making process may constitute or justify a finding of an underlying jurisdictional error. A Tribunal that employs irrational or illogical reasoning, or makes irrational findings of fact not based on probative material, is likely to be in breach of the implied requirement that it act reasonably in exercising its statutory review powers and jurisdiction. A decision based on, or flowing from, irrational and illogical reasoning or factual findings is likely to be legally unreasonable and beyond power.

   [50] As was made clear by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[132], however, not every lapse in logic in the decision-making process will result in jurisdictional error. If particular findings or reasoning on the way to the decision-maker’s ultimate conclusion and decision are challenged on the basis of illogicality or irrationality, jurisdictional error qwill not be made out unless it is shown that the findings could not have been made, or the reasoning could not have been employed, by a reasonable or rational decision-maker. At [131] their Honours said:

   What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. 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.

   [51] Crennan and Bell JJ found that the impugned finding or reasoning by the Tribunal was not illogical or irrational because on the probative evidence before the Tribunal a logical or rational decision-maker could have come to the same conclusion. Heydon J, who was the other member of the majority in SZMDS, also found that the Tribunal’s reasoning was not illogical because it was a matter about which reasonable minds might differ: the “difference was one of degree, impression and empirical judgment” (at [78]). Gummow ACJ and Kiefel J dissented. They found that the Tribunal’s reasoning was illogical. Their Honours nevertheless emphasised that the “critical question” whether a determination of the Tribunal is irrational, illogical and not based on findings or inferences of facts supported by logical grounds “should not receive an affirmative answer that is lightly given” (at [40]).

   [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 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at [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 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 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 [66]; SZWCO at [64]-[67].”

7. It could not be said that the illogicality and unreasonableness of the Tribunal in respect of its critical findings of implausibility, inconsistency and lack of credibility on the part of the applicant did not affect its ultimate decision to refuse to grant the visa to the applicant. No other of the Tribunal’s findings could alone have reasonably led to the Tribunal’s ultimate conclusion.

8. This Court recognises that there is a high threshold to be met before findings of unreasonableness or illogicality are made. It is nevertheless satisfied that the applicant has established jurisdictional error on the part of the Tribunal based on established principles.

9. The applicant has succeeded on Grounds 1(i), (ii) and (iv) of its amended application for review.

10. The decision of the Tribunal made on 29 October 2018 is quashed. The matter ought to be remitted for rehearing by a differently constituted Tribunal, and it is ordered accordingly.

11. The court will hear the parties as to costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 20 September 2019